Miguel Angel Aguilera v. State

NUMBER 13-13-00650-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MIGUEL ANGEL AGUILERA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 138th District Court
of Cameron County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Longoria
Memorandum Opinion by Chief Justice Valdez

A jury found appellant Miguel Angel Aguilera guilty of first-degree aggravated

sexual assault of a child. See TEX. PENAL CODE ANN. § 22.021(a)(2)(B) (West, Westlaw

through 2015 R.S.). By eight issues, which we have reorganized, Aguilera contends: (1)

the evidence is legally insufficient to prove that S.G., the complainant, was under six years

of age at the time of the offense [issue seven]; (2) the trial court erred in admitting the
testimony of the State’s outcry witness [issue one]; (3) the trial court erred in finding that

S.G. was competent to testify [issue three]; (4) the trial court erred in allowing the State

to ask S.G. leading questions on direct examination [issue four]; (5) the trial court erred

in admitting S.G.’s video statement as a prior consistent statement under Texas rule of

evidence 801(e)(1)(B) [issue two]; (6) the evidence is legally insufficient to satisfy the

“penetration” element of aggravated sexual assault of a child [issue eight]; (7) the trial

court erred in admitting a nurse examiner’s medical report, which contained hearsay

statements of S.G. and S.G.’s mother under Texas rule of evidence 803(4) [issue five];

and (8) the State violated Aguilera’s equal protection rights under Batson v. Kentucky,

476 U.S. 79 (1986) by peremptorily striking a disproportionate number of men from the

venire [issue six]. We affirm.

I. Background

On December 13, 2012, S.G. made an outcry that her mother’s ex-boyfriend,

Aguilera, sexually assaulted her at his house. Following S.G.’s outcry, Aguilera was

arrested and charged by way of an indictment with sexually assaulting S.G. The State’s

indictment specifically alleged that on or about March 31, 2012, Aguilera “intentionally or

knowingly caus[ed] the penetration of the sexual organ of S.G., a pseudonym, a child who

was then and there younger than 6 years of age, by [Aguilera’s] finger.” Aguilera pleaded

not guilty to this charge, and the case was called for a jury trial.

At trial, the State admitted Aguilera’s written statement into evidence, wherein he

confessed that:

Around March or April of 2012[,] I was living with [S.G.’s mother and S.G.]
at the Villa Madre [Apartments] # 206. One night I was watching T.V. on
the sofa when [S.G.] came and sat on my lap. . . . I started to get arouse[d]
and put her panties aside and I placed my right hand middle finger inside

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 her vagina. It was only in there for about 5 seconds because [S.G.] said it
hurt. I panic[ed] and took out my finger and told her to go to her mom who
was in the room asleep.

Also presented at trial was the testimony of S.G., who identified Aguilera by his first name

(Miguel) and, while pointing to a diagram depicting a female sexual organ, testified that

Aguilera touched her “part” with his hand. Over Aguilera’s hearsay objection, the State

also presented the testimony of its outcry witness, Melissa Cardenas, who testified that it

was during an after-school visit with S.G. and S.G.’s mother on December 13, 2012 that

S.G confided in her that Aguilera put his “fingernails” in her female sexual organ and that

this happened at Aguilera’s house. Over another hearsay objection by Aguilera, the State

admitted a video statement that S.G. made on December 14, 2012 to Joanna Frausto, a

forensic interviewer with the children's advocacy center, wherein S.G. related that

Aguilera sexually abused her. Later at trial, the State admitted a redacted version of a

medical report prepared by a forensic nurse who examined S.G. after she made her

outcry to Cardenas. On page twelve of this medical report, S.G. and S.G.’s mother are

quoted relating details to the nurse concerning the timing and the nature of the sexual

abuse.

After presentation of all the evidence, the jury found Aguilera guilty of aggravated

sexual assault of a child under the age of six as charged in the indictment. Aguilera

elected to have the trial court assess punishment, and the judge sentenced him to thirty-

three years’ imprisonment. This appeal followed.

II. Discussion

A. Legal Sufficiency

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 By his seventh issue, Aguilera contends that the evidence is legally insufficient to

prove that S.G. was under the age of six when he sexually assaulted her. In reviewing

the legal sufficiency of the evidence to support a criminal conviction, we view the evidence

in the light most favorable to the prosecution and then ask whether “any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.”

See Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Brooks v. State, 323 S.W.3d

893, 902 n.19 (Tex. Crim. App. 2010). Under this standard of review, the jury is the

“exclusive judge of the credibility of witnesses and of the weight to be given testimony,

and it is also the exclusive province of the jury to reconcile conflicts in the evidence.”

Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).

A person commits the offense of aggravated sexual assault of a child if the person

intentionally or knowingly causes the penetration of the sexual organ of a child under the

age of six, by any means. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (iv). In this

case, the indictment alleged that Aguilera sexually assaulted S.G. “on or about March 31,

2012.” Thus, in order to satisfy the age element of this offense, the State had to present

evidence that S.G. was under the age of six “on or about March 31, 2012.” Here, the jury

heard undisputed evidence that S.G. was born on June 6, 2006, allowing them to

reasonably infer that S.G. was five years of age on or about March 31, 2012.

Furthermore, Aguilera confessed that the sexual abuse occurred “[a]round March or April

2012,” which was before S.G.’s sixth birthday in June of that year. 1 Therefore, we

conclude that the jury, as a rational trier of fact, could have determined that the abuse

described by S.G. and confessed to by Aguilera occurred when S.G. was under the age

1Aguilera argues that the trial court should have made an affirmative finding that S.G. was under
the age of six. However, he provides no authority to support this proposition, and we find none.

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of six. See Brooks, 323 S.W.3d at 902 n.19; see also Dekneef v. State, 379 S.W.3d 423,

429 (Tex. App.—Amarillo 2012, pet. ref'd) (finding the evidence sufficient to support the

jury’s verdict that the victim was under the age of six based on evidence of the victim’s

date of birth, coupled with other evidence that the victim was still under the age of six

when the defendant moved out of the house where the sexual abuse occurred). We

overrule Aguilera’s seventh issue.

B. Outcry Witness

By his first issue, Aguilera contends that the trial court should have excluded

Cardenas’ testimony concerning S.G.’s December 13, 2012 outcry because the State

failed to provide him sufficient notice of its intent to call Cardenas as an outcry witness

pursuant to Texas code of criminal procedure article 38.072. See TEX. CODE CRIM. PROC.

ANN. art. 38.072, § 2(a), (b) (West, Westlaw through 2015 R.S.). Aguilera argues that

because the State’s notice was deficient, Cardenas’ outcry testimony was not admissible

under article 38.072 and therefore constituted inadmissible hearsay.

1. Applicable Law and Standard of Review

There is no dispute that S.G.’s December 13, 2012 outcry to Cardenas was

hearsay. Hearsay statements are not admissible in Texas unless otherwise provided by

the rules of evidence or by statute. See TEX. R. EVID. 802. Article 38.072 creates a

statutory exception to the rule against hearsay for statements of child-abuse victims if

certain conditions are met. Davidson v. State, 80 S.W.3d 132, 135–36 (Tex. App.—

Texarkana 2002, pet. ref'd) (citing TEX. CODE CRIM. PROC. ANN. art. 38.072). Article

38.072 provides that in sexual offense cases committed against a child, a statement that

was made by the child to the first adult about the offense will not be inadmissible because

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of the hearsay rule. TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b)(1)(A). In order for

this hearsay exception to apply, the State must notify the defendant of its intention to offer

such statement on or before the fourteenth day before trial begins. Id. The purpose of

this fourteen-day requirement is to avoid surprising the defendant with the introduction of

outcry hearsay testimony. See Gay v. State, 981 S.W.2d 864, 866 (Tex. App.—Houston

[1st Dist.] 1998, pet. ref’d). To achieve this purpose, the State must provide the name of

the witness through whom it intends to offer the child’s statement and a written summary

of the statement. TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b)(1)(C)–(D); Davidson,

80 S.W.3d at 136. The notice is sufficient if it reasonably informs the defendant of the

essential facts related in the outcry statement. Davidson, 80 S.W.3d at 136. The trial

court has broad discretion to determine whether a child’s statement is admissible under

article 38.072. See Reed v. State, 974 S.W.2d 838, 841 (Tex. App.—San Antonio 1998,

pet. ref'd). The exercise of that discretion will not be disturbed on appeal unless the

record shows a clear abuse of discretion. Id.

2. Analysis

The record in this case shows that more than fourteen days before trial, the State

provided written notice to Aguilera of its intention to offer S.G.’s outcry statement through

Cardenas. See TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b)(1)(A). The State

specifically identified Cardenas by name in its notice and also provided a written summary

of the outcry S.G made to her on December 13, 2012. See id. art. 38.072, § 2(b)(1)(C)–

(D). Aguilera does not argue on appeal that the State’s notice suffered from any

deficiency of substance or otherwise failed to inform him of the essential facts concerning

S.G.’s outcry to Cardenas. Instead, Aguilera argues that the State’s notice caught him

6
by surprise because it also contained a summary of S.G.’s video statement to Joanna

Frausto at the children’s advocacy center on December 14, 2012, which, in relevant

substance, repeated the outcry that S.G. made to Cardenas the day before. Aguilera

asserts that by identifying both Cardenas and Frausto as outcry witnesses for the same

sexual conduct alleged, the State’s notice failed to identify the first adult to whom S.G.

made an outcry. However, the State’s notice indicates that on December 13, 2012, S.G.

told Cardenas what Aguilera had done to her and that she repeated it to Frausto the next

day. Because there was never any confusion as to the sequential order of S.G.’s outcries

in the State’s notice, we cannot agree with Aguilera that the State failed to identify the

first adult to whom S.G. made an outcry. Furthermore, Aguilera provides no authority to

support his argument that the State fails to give proper notice under article 38.072 when

it identifies two possible outcry witnesses in sequential order for the same conduct

alleged, and we find none. We therefore conclude that the trial court did not abuse its

discretion in finding that S.G.’s outcry to Cardenas, though hearsay, was admissible

under article 38.072. See TEX. R. EVID. 802; see also TEX. CODE CRIM. PROC. ANN. art.

38.072. We overrule Aguilera’s first issue.

C. S.G.’s Competence to Testify

By his third issue, Aguilera contends that the trial court erred in finding that S.G.

was competent to testify.

Texas rule of evidence 601(a) states that “[e]very person is competent to be a

witness” unless otherwise excluded under the rule. TEX. R. EVID. 601(a). Rule 601(a)

further states that “persons lacking sufficient intellect” are incompetent to testify, including

a child “whom the court examines and finds lacks sufficient intellect to testify concerning

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the matters in issue.” Id. Three elements must be considered by a reviewing court in

determining whether a child witness is competent to testify: (1) the competence to

observe intelligently the events in question at the time of their occurrence; (2) the capacity

to recollect the events; and (3) the capacity to narrate them, which involves the ability to

understand questions asked and to frame intelligent answers, and the ability to

understand the moral responsibility to tell the truth. Reyna v. State, 797 S.W.2d 189,

191–92 (Tex. App.—Corpus Christi 1990, no pet.); Hollinger v. State, 911 S.W.2d 35, 39

(Tex. App.—Tyler 1995, pet. ref'd). The determination of a trial court that a child witness

is competent to testify is reviewed for an abuse of discretion. See Reyna, 797 S.W.2d at

191. In conducting this review, we must consider all the testimony of the child witness,

including any testimony at a competency hearing. Id.

Here, S.G. was seven years of age at the time of trial and five years of age at the

time of the offense. See Hollinger, 911 S.W.2d at 38 (holding that the child, who was four

years of age at the time of trial, was competent to testify about being victimized when he

was three years of age). S.G. knew her name, her age, her hometown, the name of her

first-grade teacher, and she knew the difference between the truth and a lie. See id.

(concluding that a child was competent to testify after correctly answering questions

concerning his family, his name, his birthday, and after acknowledging the difference

between the truth and a lie). Furthermore, during questioning about the events giving rise

to the prosecution, S.G. identified Aguilera by his first name (Miguel) and recollected that

he touched her “part” with his hand, which she described by circling an area of a diagram

depicting a female sexual organ. See id. (determining that a child was competent to

8
testify after identifying the defendant as the one who “hurted” him and remembering that

he told his mother a long time ago that defendant had hurt him).

We acknowledge that S.G. had some difficulty recalling certain events surrounding

the sexual assault, such as her video statement at the child advocacy center, and she

gave mostly one-to-two worded answers to the questions put to her by the trial court and

the trial attorneys. However, the record also reflects that she was seven years old at the

time of trial, in first grade, and being called upon to recollect a traumatic event in a

courtroom setting. See id. (holding that the trial court did not abuse its discretion in finding

that a child was competent to testify even though he did not provide much detail

concerning the alleged assault).

After reviewing all of S.G.’s testimony, we hold that she was competent to

intelligently observe the sexual-assault event at the time it happened; she had sufficient

capacity to recollect that event; and she was able to frame intelligent, age-appropriate

answers to the questions put to her by the parties while understanding the moral

responsibility to tell the truth. See id. Therefore, we conclude that the trial court did not

abuse its discretion in finding that S.G. possessed sufficient intellect to testify concerning

the matters in issue. See TEX. R. EVID. 601(a). We overrule Aguilera’s third issue.

D. Leading Questions to S.G. on Direct Examination

By his fourth issue, Aguilera complains that the trial court erred in overruling his

objections to leading questions put to S.G. by the State during direct examination.

Texas Rule of Evidence 611(c) provides that “leading questions should not be used

on direct examination except as may be necessary to develop the testimony of the

witness.” TEX. R. EVID. 611(c) (emphasis added). The general rule against leading

9
questions is relaxed with child witnesses—particularly among those exhibiting a learning

disability. See Clark v. State, 952 S.W.2d 882, 886 (Tex. App.—Beaumont 1997, no pet.)

(citing Moon v. State, 856 S.W.2d 276, 279 (Tex. App.—Fort Worth 1993, pet. ref’d)); In

re J.A.W., 976 S.W.2d 260, 262 (Tex. App.—San Antonio 1998, no pet.) (holding that the

trial court had the discretion to allow leading questions on the direct examination of a child

in special education classes with a learning disability); see also Trevino v. State, 783

S.W.2d 731, 733 (Tex. App.—San Antonio 1989, no writ) (same). In such cases, courts

hold that leading a child witness on direct examination is necessary to develop his or her

testimony. In re J.A.W., 976 S.W.2d at 262; Trevino, 783 S.W.2d at 733. Permitting

leading questions lies within the sound discretion of the trial court, which calls for reversal

on appeal only when that discretion has been abused. Newsome v. State, 829 S.W.2d

260, 270 (Tex. App.—Dallas 1992, no pet.); See Hernandez v. State, 643 S.W.2d 397,

400 (Tex. Crim. App. 1982).

In this case, S.G. was seven years old at the time of trial, and S.G.’s mother

testified that S.G. tested for special education, had a learning disability, and had to repeat

the first grade. Under these circumstances, we hold that the trial court did not abuse its

discretion in allowing the State to ask S.G. leading questions on direct examination in

order to develop her testimony. See Uhl v. State, 479 S.W.2d 55, 57 (Tex. Crim. App.

1972) (holding that the “asking of leading questions will seldom be a ground for reversal

especially where a child is testifying[.]”). We overrule Aguilera’s fourth issue.

E. S.G.’s Video Statement to Joanna Frausto as a Prior Consistent
Statement

By his second issue, Aguilera contends that the trial court erred in admitting S.G.’s

December 14, 2012 video statement to Frausto at the children’s advocacy center as a

10
prior consistent statement under Texas rule of evidence 801(e)(1)(B). See TEX. R. EVID.

801(e)(1)(B). We review a trial court’s determination that a prior consistent statement is

admissible under rule 801(e)(1)(B) for an abuse of discretion. See Hammons v. State,

239 S.W.3d 798, 806 (Tex. Crim. App. 2007). Under this standard, we must affirm the

trial court unless the decision was so clearly wrong as to lie outside the zone of

reasonable disagreement. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).

The relevant facts are as follows. At trial, S.G. testified on direct examination that

Aguilera touched her “part” with his hand. On cross examination, Aguilera asked S.G. to

recount the number of times she met with each attorney representing the State before

trial; S.G. answered “10 times” as to each State’s attorney. On re-direct, the State moved

to admit S.G.’s December 14, 2012 video statement at the children’s advocacy center, in

which S.G. related that Aguilera sexually abused her. Over Aguilera’s hearsay objection,

the trial court admitted S.G.’s video statement as a prior consistent statement under

Texas rule of evidence 801(e)(1)(B). See TEX. R. EVID. 801(e)(1)(B) (providing that a prior

consistent statement of a testifying witness is not hearsay if it is offered to rebut an

express or implied charge that the witness acted from a recent improper influence or

motive in so testifying).

To be admissible under rule 801(e)(1)(B), S.G.’s video statement had to meet the

following four requirements: (1) S.G. testified at trial and was subject to cross

examination; (2) Aguilera expressly or impliedly accused S.G. of being improperly

influenced or motivated to provide testimony substantiating the allegation of sexual abuse

contained in the State’s indictment; (3) S.G.’s video statement was consistent with her in-

court testimony; and (4) S.G.’s video statement was made prior to the time that the

11
supposed improper influence or motive to testify arose. See TEX. R. EVID. 801(e)(1)(B);

see also Hammons, 239 S.W.3d at 804 (citing rule 801(e)(1)(B)). Here, S.G. testified at

trial and was subject to cross-examination (first requirement); her testimony concerning

sexual abuse was generally consistent with her video statement (third requirement); and

her video statement was made before the State’s attorneys met with her to prepare for

trial (fourth requirement). However, the question for our review concerns the second

requirement—specifically, whether Aguilera’s cross examination of S.G. regarding the

number of times she met with the State’s attorneys impliedly accused S.G. of being

improperly influenced or motivated by the State’s attorneys to provide testimony

substantiating the allegation of sexual abuse contained in the State’s indictment.

To determine whether cross examination of a witness makes an implied charge of

improper influence or motive sufficient to satisfy the second requirement, we focus on the

“purpose of the impeaching party, the surrounding circumstances, and the interpretation

put on them by the trial court.” Hammons, 239 S.W.3d at 808. We also consider the

totality of the questioning, give deference to the trial judge's assessment of the tone and

tenor of the questioning, and look for “clues” from the impeaching party’s voir dire,

opening statement, and closing argument that might reveal whether the cross

examination at issue made an implied charge of improper influence or motive. See id.

Here, the circumstances surrounding Aguilera’s cross examination support a

finding that he made an implied charge of improper influence or motive by inquiring into

the number of times S.G. had met with the State’s attorneys prior to trial. The record

shows that before cross examining S.G., Aguilera sought to have the trial court deem

S.G. incompetent to testify, in large part, because she was only able to respond to leading

12
questions and could not answer anything without being “prompted.” The record also

shows that after Aguilera was unsuccessful in deeming S.G. incompetent to testify, the

first major topic he explored on cross examination was whether she had ever met with

the State’s attorneys and, if so, how many times. When S.G. answered that she had met

with the State’s attorneys ten times prior to trial, Aguilera sowed the seed of innuendo by

asking her to agree that ten meetings with the State represented “a bunch” of meetings—

a seed which came to full fruition during closing argument when Aguilera suggested, not

so subtly, that these “multiple” meetings might have influenced S.G. to testify about sexual

abuse that never actually occurred simply to please the State’s attorneys. Under these

circumstances, we cannot say that the trial court abused its discretion in finding that the

State was allowed to show the jury that it was not S.G.’s meetings with the State’s

attorneys that caused her to testify about sexual abuse because she had said the same

thing in a video statement before the meetings occurred. See id. (observing that the

defendant sowed the “seed of innuendo” by subtly implying on cross examination that the

sexual-assault victim’s civil attorney improperly influenced her recollection of certain

events in the criminal trial—a seed which, according to the court of criminal appeals,

“came to full fruition” during closing argument when the defendant expressly accused the

victim of fabricating evidence with her civil attorney). We conclude that the trial court did

not abuse its discretion in finding that S.G.’s video statement met all four elements under

rule 801(e)(1)(B) and therefore was properly admissible as a prior consistent statement.

See id. We overrule Aguilera’s second issue.2

2 By his eighth issue, Aguilera contends that the evidence would be legally insufficient to support

the “penetration” element of aggravated sexual assault of a child “if” we find that the trial court erred in
admitting S.G.’s December 13, 2012 outcry to Cardenas and her December 14, 2102 video statement to
Frausto into evidence. First, Aguilera’s eighth issue is moot because, as we discussed above, the trial

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 F. Medical Report

By his fifth issue, Aguilera contends that the trial court erred in admitting a forensic

nurse’s medical report, which contained hearsay statements of S.G. and S.G.’s mother

concerning the timing and the nature of the sexual abuse alleged. The complained-of

statements appear on page twelve of the report, wherein the forensic nurse quotes

verbatim the following statements that S.G. and S.G.’s mother made to her:

[S.G.] states: Miguel. He touched that part ([S.G.] indicates
female sexual organ by pointing). With his one
hand. On top of the clothes and under the
clothes. Not inside. I was asleep and then he
touched me. I woke up and he was here (patient
indicates placement with hand) and I was here
(patient demonstrates by moving hand toward
her). I told my mom. It was a long time ago.
When we were living with him.

....

[S.G.’s mother] states: [S.G.] told my sister and her cousin that
[Aguilera] had touched her again. She hasn’t
told me anything. I asked why she didn’t tell me
and she said she was scared she was going to
get spanked.

Aguilera contends that because S.G. and S.G.’s mother did not make these

statements for the purpose of medical diagnosis of treatment, they fell outside the

applicable hearsay exception for those types of statements under Texas rule of evidence

court properly admitted S.G.’s statements to Cardenas and Frausto. And second, more importantly,
Aguilera’s eighth issue would invite misapplication of the legal sufficiency standard. It is well settled law
that in reviewing a legal sufficiency point, we must consider all the evidence admitted at trial—even the
erroneously admitted evidence. See Roeder v. State, 688 S.W.2d 856, 859 (Tex. Crim. App. 1985). As
such, whether improperly admitted or not, we would have to consider S.G.’s statements to Cardenas and
Frausto in reviewing the legal sufficiency of the evidence to support the penetration element of aggravated
sexual assault of a child. Therefore, we summarily overrule Aguilera’s eighth issue. See id. (summarily
refusing to consider defendant’s issue because it would invite misapplication of the legal sufficiency
standard).

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803(4). See TEX. R. EVID. 803(4) (providing that statements made for medical diagnosis

or treatment are admissible as an exception to hearsay). However, by not objecting to or

obtaining a ruling on the admissibility of these statements at trial, Aguilera waived this

issue for our review.

The record reflects that when the State sought to admit an original version of the

forensic nurse’s report into evidence, Aguilera objected on hearsay grounds. The trial

court then made redactions responsive to Aguilera’s objection. The record further reflects

that after the trial court redacted the report, Aguilera reviewed it and affirmatively stated

that he had “no objection to it as redacted[.]” The trial court then admitted the redacted

report into evidence, which contained the complained-of statements quoted above. Thus,

not only did Aguilera fail to object to the admissibility of the statements about which he

now complains, the record shows that he affirmatively stated that he had “no objection”

to them. See Bunton v. State, 136 S.W.3d 355, 366 (Tex. App.—Austin 2004, pet. ref'd)

(holding that appellate complaints concerning the admissibility of evidence must be

preserved by proper objection at trial). And to the extent that Aguilera challenges the

correctness of the trial court’s redactions on appeal, he has waived the complaint by

failing to object or obtain an adverse ruling from the trial court on that basis. See TEX. R.

APP. P. 33.1(a) (providing that the appellant must preserve an appellate complaint in the

trial court by making a timely objection that states the grounds for the complaint and by

securing an adverse ruling on those grounds). We therefore overrule Aguilera’s fifth

issue.

G. The Batson Challenge

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 By his sixth issue, Aguilera contends that the State violated his equal protection

rights under Batson v. Kentucky by peremptorily striking a disproportionate number of

men from the venire. See 476 U.S. 79 (1986). The State responds that Aguilera did not

preserve this issue for appellate review. We agree with the State.

The Equal Protection Clause of the Fourteenth Amendment to the United States

Constitution forbids a prosecutor to peremptorily challenge potential jurors solely on

account of their race or gender. See id. at 89 (prohibiting the use of preemptory strikes

based on race); see also J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (prohibiting

the use of preemptory strikes based on gender). A challenge raised under this

constitutional prohibition is commonly referred to as a “Batson challenge.” See generally

Batson, 476 U.S. at 89. Each state is responsible for implementing the constitutional

prohibition recognized in Batson. See id. at 100 n.24.

To codify and implement this prohibition in Texas, the Legislature enacted article

35.261 of the Texas code of criminal procedure. See Hill v. State, 827 S.W.2d 860, 863

(Tex. Crim. App. 1992). Under article 35.261, a defendant making a Batson challenge

must do so “before the court has impanelled the jury”—otherwise, courts consider the

challenge forfeited as untimely. See Yarborough v. State, 947 S.W.2d 892, 899 (Tex.

Crim. App. 1997); Alexander v. State, 866 S.W.2d 1 n.8 (Tex. Crim. App. 1993); Hill, 827

S.W.2d at 863; Cooper v. State, 791 S.W.2d 80 (Tex. Crim. App. 1990); Woods v. State,

301 S.W.3d 327, 336 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Saldivar v. State,

980 S.W.2d 475, 482–84 (Tex. App.—Houston [14th Dist.] 1998, pet. ref'd); Redman v.

State, 848 S.W.2d 710, 715 (Tex. App.—Tyler 1992, no pet.); Bucciarelli v. State, 793

S.W.2d 289, 291 (Tex. App.—Corpus Christi 1990, pet. ref'd). A jury is “impanelled” when

16
the members of the jury have been selected and sworn. See Hill, 827 S.W.2d at 864.

Here, the record clearly reflects that Aguilera made his Batson challenge after the jury

had been selected and sworn. Therefore, Aguilera failed to preserve his sixth issue for

appellate review. See Hill, 827 S.W.2d at 864; Saldivar, 980 S.W.2d at 482–84. We

overrule Aguilera’s sixth issue.

III. Conclusion

We affirm Aguilera’s conviction.

/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice

Do Not Publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
24th day of November, 2015.

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