Quintero, Mario Josue

5tZ-<5 ORIGINAL
Oral argument waived

PD-0512-15

IN THE TEXAS COURT OF CRIMINAL APPEALS
******************************************

^RECEIVED IH
mario quintero COURT OF CRIMINAL APPEAL S
Appellant-Petitioner

V.
JUN 19 2015

THE STATE OF TEXAS Ab@, AcQ f Q
Appellee-Respondent woia, uiwra
****************************************************

FROM THE FOURTH COURT OF APPEALS
CAUSE NO.. 04-13-00596-CR

APPEAL FROM THE 38TH JUDICIAL DISTRICT COURT
OF MEDINA COUNTY, TEXAS, CAUSE NO. 11-07-10748-CR
HONORABLE TOM LEE PRESIDING

*************************************************,(r*/

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
******************************************************^

FILED IN
COURT OFCRIMINAL APPEALS

By: JUN 19 2015
Mario Quintero, Pro Se
TDCJ-CID #1878429 A. . . . ~. ,
Connally Unit Abel AC0St3' Cierk
899 FM 632
Kenedy, Texas 78119
 GROUNDS FOR REVIEW

GROUND ONE

The court of appeals erred when it held that the jury instructions
given in Mr. Quintero1s trial did not relieve the State of the
burden of proving that two or more acts of sexual abuse were
committed 30 days or more apart.

GROUND TWO

The court of appeals erred when it held that the trial court did not
abuse its discretion in determining that two children were competent
to testify when one did not remember his previous birthday, the
previous year, or the previous summer during which the offense was
alleged and the other did not know what the consequences were for
telling a lie.

Appellant's Petition for Discretionary Review - Page ii
 TABLE OF CONTENTS

GROUNDS FOR REVIEW
.. .11
i

TABLE OF CONTENTS
..iii

INDEX OF AUTHORITIES
. ..v

IDENTITY OF JUDGE, PARTIES, AND COUNSEL •vii

STATEMENT REGARDING ORAL ARGUMENT... viii

STATEMENT OF CASE.
viii

STATEMENT OF PROCEDURAL HISTORY viii

INTRODUCTION.
...1

STATEMENT OF FACTS
...1

1. Jury Instructions ...1

2. Child Witness Competency Hearing 2
ARGUMENT.
• 2

GROUND ONE

The court of appeals erred when it held that the jury instructions
given in Mr. Quintero*s trial did not relieve the State of the
burden of proving that two or more acts of sexual abuse were
committed 30 days or more apart

A. Reasons for Granting Review. 2

B- Applicable Law. .3

C. Application and Analysis. .4

p. Sufficient Harm is Shown for Reversal 6
II.- GROUND TWO

The court of appeals erred when it held that the trial court did
not abuse its discretion in determining that two children were
competent to testify when one did not remember his previous
birthday, the previous year or!the previous summer during which
the offense was alleged and the other did not know what the
consequences were for telling a lie

A. Reasons for Granting Review. 7

B. Applicable Law.

Appellant's Petition far Discretionary Review - Page iii
 C. Application and Analysis 8

D. Sufficient Harm is Shown for Reversal. 9

PRAYER FOR RELIEF 20

DECLARATION 10

CERTIFICATE OF SERVICE H

APPENDIX: Fourth Court of Appeals' Opinion

Appellant's Petition fix Discretionary Review - Page iv
 INDEX OF AUTHORITIES

CASES pAGE

Allen v. State, 253 S.W.3d 260, 264 (Tex.Crim.App.2008) 4
Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985). 4
Broussard v. State, 910 S.W.2d 952, 960 (Tex.Crim.App.1995) 8
Burnett v. State, 88 S.W,3d 633, 637-38 (Tex.Crim.App.2002) 9

Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038 (1973) 9

Cool v. United States, 409 U.S. 100, 104 (1972) 3

Delgado v. State, 235 S.W.3d 244, 249 & fn. 17 (Tex.Crim.App.2007) 7
Doyle v. State, 631 S.W.2d 732, 738 (Tex.Crim.App. 1982) 7

Hogan v. State, 440 S.W.3d 211, 213-14 (Tex.App.—Houston [14th Dist.]
2013, pet. ref'd) 7

In re Winship, 397 U.S. 358, 364 (1970) 3

Johnson v. State, 673 S.W.2d 190, 194 (Tex.Crim.App. 1984) 3

Lowry v. State, 692 S.W.2d 86, 87 (Tex.Crim.App. 1985) 3

Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990)
(op. on reh'g) 8

Parle v. Runnels, 505 F.3d 922 (9th Cir. 2007)... 9

Reyna v. State, 797 S.W.2d 189, 19.1-92 (Tex.App.—Corpus Christi
1990, no pet.) 7

Rich v. State, 160 S.W.3d 575, 577-78 (Tex.Crim.App.2005) 9

Sakil v. State, 287 S.W.3d 23, 25 (Tex.Crim.App.2009) 3

Smith v. State, 340 S.W.3d 41, 50 (Tex.App.—Houston [1st Dist.]
2011, no pet.) 3, 5

Spence v. Johnson, 80 F.3d 989, 1000 (5th Cir. 1996) 9

Waddington v. Sarausad, 129 S.Ct. 823, 831 (2009) 6

Williams v. State, 305 S.W.3d 886, 890-91 (Tex.App.—Texarkana 2010,
no pet.) 4

Williams v. State, 622 S.W.2d 578 (Tex.Crim.App. 1981) 6

Williams v. State, 547 S.W.2d 18 (Tex.Crim.App. 1977) 6

Appellant's Petition for Discretionary Review - Page v
Wright v. State, 28 S.W.3d 526, 537 (Tex.Crim.App.2000) 9

Zuckerman v. State, 591 S.W.2d 495, 496 (Tex.Crim.App. 1979) 3

FEDERAL STATUTES

28 U.S.C. § 1746 10

STATE STATUTES

Tex.Civ.Prac. & Rem.Code, ^Ch. 132 10

Tex.Pen.Code § 21.02 ..1

Tex.Pen.Code § 21.02(b) ' 4

Tex.Pen.Code § 21.02(d) 4

STATE RULES

Tex.R.App.P. 44.2(b) 9

Tex.R.App.P. 66.3(a) 3, 7

Tex.R.App.P. 66.3(c) 3

Tex.R.App.P. 66.3(f) 8

Tex.R.App.P. 68.1 ..1

Tex.R.App.P. 68.4(d) viii

Appellant's Petition for Discretionary Review - Page vi
 IDENTITY OF JUDGE, PARTIES, AND COUNSEL
APPELLANT:
Mr. Mario Josue Quintero
TDCJ-CID #1878429
Connally Unit
899 FM 632
Kenedy, Texas 78119

APPELLANT'S TRIAL ATTORNEY: Mr. Lauro A. Bustamonte, Jr.
Attorney at Law
346 Laurelwood
San Antonio, Texas 78213

APPELLANT'S APPEAL ATTORNEY: Mr. Michael C. Gross
Attorney at Law
106 S. St. Mary's Street
Suite 260
San Antonio, Texas 78205

TRIAL JUDGE:
Honorable Tom Lee
Judge Presiding
38th Judicial District Court
Medina County Courthouse
801 Avenue Y
Hondo, Texas 78861

STATE'S TRIAL ATTORNEY: Ms. Julie Solis
Assistant District Attorney
38th Judicial District
3102 Avenue G
Hondo, Texas 78861

STATE'S APPEAL ATTORNEY: Edward F. Shaughnessy, III
Attorney at Law
206 E. Locust Street
San Antonio, Texas 78212

Appellant's Petition for Discretionary Review - Page vii
 STATEMENT REGARDING ORAL ARGUMEBT

Mr. Quintero waives oral argument. Tex.R.App.P. 68.4(d).
STATEMENT OF CASE

Mr. Quintero was indicted in Cause Number 11-07-10748-CR with two
combined cases of continuous sexual abuse of a child allegedly occurring
between August 1, 2010, and September 9, 2012. (1 CR 268.) The jury was
selected on June 7, 2013, before the Honorable Candle Dubose, presiding judge.
(2 RR 1, 6.) Judge Thomas Lee presided over the remainder of the trial. On
June 18, 2013, the jury found Mr. Quintero guilty. (9 RR 73.) On July 22,
2013, the trial court sentenced Mr. Quintero to 50 years imprisonment in the
Texas Department of Criminal Justice Correctional Institutions Division and a
$10,000 fine. (1 CR 268; 10 RR 111.) Mr. Quintero timely filed a motion for
new trial, but the trial court denied that motion. (1 CR 276-77; 10 RR 111-
12.) Mr. Quintero timely filed notice of appeal. (1 CR 278.) In April 2015,
the Fourth Court of Appeals affirmed the conviction and sentence. (See
Attached Appendix, Court of Appeals' Opinion.)

STATEMENT OF PROCEDURAL HISTORY

The court of appeals handed down its Memorandum Opinion on April 15,
2015. Mario Josue Quintero v. The State of Texas, No. 04-13-00596-CR (Tex.
APP«—San Antonio). Mr. Quintero did not file a motion for rehearing. This
Court granted Mr. Quintero an extension of time to file this Petition. This

Petition is due by July 14, 2015.

Appellant's Petition for Discretionary Review - Page viii
 COURT OF CRIMINAL APPEALS OF TEXAS
AUSTIN, TEXAS

MARIO QUINTERO, § CCA # PD_o512-15
TDCJ-CID #1878429, §
§
Appellant-Petitioner, §
§
V. § COA # 04-13-00596-CR
§
THE STATE OF TEXAS, §

Appellee-Respondent. § TC # H-07-10748-CR
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

INTRODUCTION

On appeal, Appellant Mario Quintero challenged (1) the jury instructions,
(2) the trial court's decision to allow two witnesses to testify as outcry
witnesses, and (3) the trial court's determination that the three testifying
child complainant's were competent to testify. (See Mr. Quintero*s Brief on
Appeal, pp. iii-iv.) Here, Mr. Quintero argues that the jury instructions
relieved the State of its burden of proof and the trial court abused its
discretion when it determined that two of the three child complainants were
competent to testify. Mr. Quintero maintains his innocence. He respectfully
asks the Court to grant discretionary review, as authorized by Tex.R.App.P.
68.1.

STATEMENT OF FACTS

1- The Jury Instructions

The indictment charged Mr. Quintero with continuous sexual abuse of
/
children under Tex.Pen.Code § 21.02. (1 CR 24-25.) At the conclusion of the
evidence, the trial judge submitted instructions to the jury regarding the law
of the case. (1 CR 245-52.) In the application paragraph of the jury
instructions, the trial judge directed the jury to convict as follows:
Now bearing in mind the foregoing instructions, if you believe from

Appellant's Petiti.cn for Discretionary Review - Page 1
 the evidence beyond a reasonable doubt that the Defendant, Mario
Josue Quintero, on or about 1st Day of August, 2010 through the 9th
day of September 2012 in Medina County, Texas, during a period that
was 30 days or more in duration, committed two or more acts of sexual
abuse against [DB], [AV], and [DV] said acts of sexual abuse having
been violations of one or more of the following penal laws
2. The Child Witness Competency Hearing

The indictment charged Mr. Quintero with continuous sexual abuse of three

children—AV, DB, and DV. (1 CR 24-25.) The trial court held a hearing
outside the jury's presence to determine the competency of the complainants.
At the hearing, 11-year-old AV testified that he did not remember when he was

10 years old. (3 RR 59.) He did not remember his 10th birthday. (3; RR 59.)
He did not remember last summer. (3 RR 59.) Defense counsel objected on the
ground that AV was not competent to testify. (3 RR 60.) The trial judge over
ruled the objection. (3 RR 60.) Seven-year-old DV took the stand. (5 RR 54.)
When asked, "[C]an you tell me when you say something is right what do you
mean?" DV stated, "I don't know." (3 RR 55.) DV said she would tell the

truth today. (3 RR 55.) When asked, "[C]an you tell me what happens if you
tell a lie?" She stated, "I don't know." (3 RR 56.) "Can you tell me what
happens if you say what is wrong and not what happened?" "I don't know."

(3 RR 56.) Defense counsel objected on the ground that DV was not competent
to testify. (3 RR 57.) The trial judge overruled the objection. (3 RR 57.)
ARGUMENT

I.

GROUND ONE
Restated

The court of appeals erred when it held that the jury instructions
given in Mr. Quintero's trial did not relieve the State of the burden
of proving that two or more acts of sexual abuse were committed 30
days or more apart. •

A. Reasons for Granting Review

The Fourth Court of Appeals' decision conflicts with the First Court of

Appellant's Petition for Discretionary Review - Page 2
 Appeals' decision on the same issue. See Tex.R.App.P. 66.3(a). The First

Court of Appeals has held that a virtually identical instruction directing the
jury to convict if it found a defendant committed two or more acts of sexual
abuse "on or about the 1st day of December, 2007, through the 1st day of
September, 2008, which said time period being a period that was 30 days or
more in duration" relieved the State of its burden of proof. See Smith v.
State, 340 S.W.3d 41, 50 (Tex.App.-—Houston [1st Dist.] 2011, no pet.).
The Fourth Court of Appeals has.also decided an important question of
state or federal law in a way that conflicts with the applicable decisions of
this Court or the Supreme Court of the United States. See Tex.R.App.P. 66.3
(c). Both the Supreme Court and this Court have held that due process compels
that every criminal prosecution prove each charged element beyond a reasonable
doubt. In re Winship, 397 U.S. 358, 364 (1970); Cool v. United States, 409

U.S. 100, 104 (1972) (a jury instruction that "reducefs] the level of proof
necessary for the Government to carry its burden ... is plainly inconsistent
with the constitutionally rooted presumption of innocence."); Johnson v. State,
673 S.W.2d 190, 194 (Tex.Crim.App.1984) ("it is incumbent on the State to prove
every element of the offense beyond a reasonable doubt."); Lowry v. State, 692
S.W.2d 86, 87 (Tex.Crim.App.1985).

B. Applicable Law

"A jury charge is fundamentally defective if it omits an essential element

of the offense or authorizes conviction on a set of facts that do not consti

tute an offense." Zuckerman v. State, 591 S.W.2d 495, 496 (Tex.Crim.App.
1979). When reviewing jury instructions, this Court first determines whether
error existed in the charge. Sakil v. State, 287 S.W.3d 23, 25 (Tex.Crim.App.
2009). When, as here, the appellant did not object to the charge, the Court
will reverse if the error is '"so egregious and created such harm'" that the

Appellant's Petition for Discretionary Review - Page 3
 defendant did not receive a. fair and impartial trial. Id^ at 26 (quoting
Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985)). In conducting its
harm analysis,, the Court considers (1) the entire jury charge, (2) the state
of the evidence, including contested issues and the weight of probative
evidence, (3) the parties' arguments, and (.4) any other relevant information
found in the record as a whole. Allen v. State, 253 S.W.3d 260, 264 (Tex.
Crim.App.2008).

A person commits the offense of continuous sexual abuse of a child if (1)

during a period that is 30 or more days in duration, the person commits two or
more acts of sexual abuse that do not have to be against the same victim; and

(2) at the time of the commission of each of the acts of sexual abuse, the
actor is 17 years of age or older and the victim is a child younger than 14
years of age. See Tex.Pen.Code Ann. § 21.02(b) (West Supp. 2014). Although
the exact dates of the abuse need not be proven, the offense of continuous

sexual abuse of a child does require proof that the last act of sexual abuse

occur on at least the 29th day after the day of the first act. See id^ §
21.02(d) ("The jury must agree unanimously that the defendant, during a period
that is 30 or more days in duration committed two or more acts of sexual

abuse."); Williams v. State, 305 S.W.3d 886, 890-91 (Tex.App.—Texarkana 2010,
no pet.) (requiring State to prove two acts of sexual abuse "committed over

a span of 30 or more days").

C. Application and Analysis

Here, the application paragraph of the jury charge directed the jury to

convict Mr. Quintero of continuous sexual abuse of a child if it found that

two or more acts of sexual abuse occurred "on or about [the] 1st [d]ay of

August, 2010 through the 9th day of September 2012 ... during a period that

was 30 days or more in duration" (1 CR 249). This instruction is improper

Appellant's Petition for Discretionary Review - Page 4
 because it directed the jury to find Mr. Quintero guilty so long as two or
more acts of sexual abuse occurred between August 1, 2009, and September 9,
2012, regardless of whether the acts occurred at least 30 days apart. See
Smith v. State, 340 S.W.3d at 50-51. The application paragraph is erroneous
because it does not specifically require that the jury determine that two or
more acts of sexual abuse occurred during a period at least 30 days in dura
tion—i.e. that there was at least 28 days between the day of the first act of
sexual abuse and the day of the last act of sexual abuse. See id. The

application paragraph stated that the August 2010 to September 2012 time frame
was "a period that was 30 days or more in duration" and imposed no requirement
as to the time period in which the acts of sexual abuse occurred.1 (1 CR 249.)
The court of appeals distinguished this case from the. Smith case because

in Smith, the jury was instructed that it could find the defendant guilty of
continuous sexual abuse of a child if two or more.acts of sexual abuse

occurred "on or about the 1st day of December, 2007, through the 1st day of
September, 2008, which said time period being a period that was 30 days or
more in duration." (See attached Appendix, Court of Appeals' Opinion, pp.
3-4.) The Smith language conveys precisely the same message as the language
in the instructions given to Mr. Quintero's jury—that the alleged time frame
was "a period that was 30 days or more in duration." The language given in

the instructions here is at best ambiguous and there is a reasonable likelihood

1. In pertinent part, a correct jury charge would have read like this:

New bearing in mind the foregoing instructions, if you believe from the evidence beyond
a reasonable doubt that the Defendant, Mario Josue Quintero, cormitted tro cr mxe acts
of sexual abuse against [D3], [AV], and .[DV] during a period that was 30days or mere
7 in duration between on or about the 1st day of August 2010 and the 9th day of September
2012, in Madina County, Texas, said acts cf sexual abuse having been violations of ere
or irore of the following penal laws ... then you will find the Defendant guilty c£ the
offense of Ocntinuous Sexual Abuse cf a Child as charged in the indictrteit.

Appellant's Petition for Discretionary Review - Page 5
that Mr. Quintero's jury interpreted the judge's instruction in a way that

relieved the State of its burden of proving every element of the crime beyond

a reasonable doubt. See Waddington v. Sarausad, 129 S.Ct. 823, 831 (2009).

The ailing instruction by itself so infected the entire trial that the

resulting conviction violates due process. See id. at 831 (citation omitted).

The court of appeals also implied that because the court instructed the

jury in an abstract definitional paragraph that "in order to find the

Defendant guilty of the offense of Continuous Sexual Abuse of a Child, you must

agree unanimously that the Defendant, during a period that is 30 or more days

in duration, committed two or more acts of sexual abuse." (Attached Court of

Appeals' Opinion, p. 3.) But it has never been the law of this state that

including such an abstract instruction apart from the application paragraph

will cure such a defect in the application paragraph. "It is not sufficient

for the jury to receive an abstract instruction on the law and then render a

verdict according to a general conclusion on whether the law was violated."

Williams v. State, 547 S.W.2d 18 (Tex.Crim.App.1977); Williams v. State, 622

S.W.2d 578 (Tex.Crim.App.1981).

The court of appeals stated that the trial court did not err because the

charge at issue tracked the applicable statutory language and accurately set

out the law applicable to the offense. But the instruction misapplied and

misrepresented the correct statutory language. The instructions failed to

correctly apply the law to the facts.

D. Sufficient Harm is Shown for Reversal

The erroneous jury instruction goes to the very basis of the case. Mr.

Quintero was convicted of a nonexistent offense. There is not an offense in

Texas of continuing sexual abuse of a child during a period that is less than

28 days. The jury instructions were fundamentally defective because the jury

Appellant's Petition for Discretionary Review - Page 6
 instructions omitted an essential element of the offense—that there be at

least 28 days between the first act of sexual abuse and the day of the last
act of sexual abuse.. See Doyle v. State, 631 S.W.2d 732, 738 (Tex.Crim.App.
1982) (concluding that the trial court's failure to include a culpable mental
state in its paragraph in the jury charge applying the law to the facts was

reversible error because it eliminated an essential element and infringed on
defendant's right to a fair trial); accord Delgado v. State, 235 S.W.3d 244,
249 & fn. 17 (Tex.Crim.App.2007).

n.

GROUND TWO
Restated

The court of appeals erred when it held that the trial court did not
abuse its discretion in determining that two children were competent
to testify when one did not remember his previous birthday, the
previous year, or the previous summer during which the offense was
alleged and the other did not know what the consequences were for
telling a lie.

A. Reasons for Granting Review

The Fourth Court of Appeals' decision conflicts with the Thirteenth Court

of Appeals' decision and the Fourteenth Court of Appeals' decision on the same
issue. See Tex.R.App.P. 66.3(a). When a party challenges the competency of
a child witness, the trial court will consider whether the child witness

possesses (1) the ability to intelligently observe the events in question at
the time of the occurrence, (2) the capacity to recollect the events, and (3)
the capacity to narrate the events.2 See Hogan v. State, 440 S.W.3d 211, 213-

14 (Tex.App.—Houston [14th Dist.] 2013, pet. ref'd); see also Reyna v. State,
797 S.W.2d 189, 191-92 (Tex.App.—Corpus Christi 1990, no pet.).
The Fourth Court's decision here conflicts with Hogan and Reyna because

2. The third element involves the ability to understand the itcral responsibility to tell
the truth. Hogan, at 214; Reyna, at 191-92.

Appellant's Petition for Discretionary Review - Kge 7
although it cited this legal standard, it did not take into consideration the

children's responses during the hearing outside the presence of the jury. The

11-year-old boy AV testified that he did not remember the previous year, his

birthday of the previous year, or the previous summer. (3 RR 59-60.) The

sexual abuse allegations were based in part on that previous year. On the

other hand, the girl DV testified that she was 7 years old at the time of trial

and she did not know what the consequences were if she told a lie, she did not

know what was meant when you say something is right, and she did not know what

was wrong with incorrectly saying what happened during a given event. (3 RR

54-56.) For these reasons, the court of appeals has also so far departed from

the accepted and usual course of judicial proceedings, or so far sanctioned

such a departure by a lower court as to call for an exercise of this Court's

supervisory power. See Tex.R.App.P. 66.3(f).

B. Applicable Law

A trial court's determination of whether a child witness is competent to

testify will not be disturbed on appeal absent an abuse of discretion.

Broussard v. State, 910 S.W.2d 952, 960 (Tex.Crim.App.1995). A trial court

abuses its discretion when its ruling is outside the zone of reasonable

disagreement. See e.g. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.

App.1990) (op. on reh'g).

C. Application and Analysis

The trial court's ruling was not within the zone of reasonable disagree

ment. AV testified that he did not remember when he was 10 years old, he did

not remember his 10th birthday, and he did not remember the previous summer.

(See 3 RR 59.) DV testified that she was only 7 years old, she did not know

what the consequences were for telling a lie, she did not know what it meant

to be right, and she did not know what was wrong with not telling the truth.

Appellant's Petition for Discretionary Review - Page 8
 (See 3 RR 54-56.)

D. Sufficient Harm is Shown for Reversal

Harm for a nonconstitutional error such as this one is reviewed under

Tex.R.App.P. 44.2(b). A harm analysis in this instance should assess whether

the defendant's substantial rights were affected—i.e. whether the error had

a substantial and injurious effect or influence in determining the jury's
verdict. Rich v. State, 160 S.W.Bd 575, 577-78 (Tex.Crim.App.2005); Burnett
v. State, 88 S.W.3d 633, 637-38 (Tex.Crim.App.2002). In the case of erroneous

admission of evidence, the appellate court should consider everything in the
record, including any testimony or physical evidence admitted for the jury's
consideration, the nature of the evidence supporting the verdict, the

character of the error and how it might be considered in connection with other

evidence in the case, the jury instructions, the State's theory and any
defensive theories, closing arguments, voir dire, and whether the State

emphasized the error. Rich, at 577-78.

Here, the error had a substantial and injurious effect or influence in

determining the jury's verdict. Without the testimony of these two children,

the State could not have convicted Mr. Quintero of this offense. These

children were the complainants. Without the complainants, the State had no

case. What's more is that the cumulative effect of the erroneous admission

of these children's testimony with the erroneous jury instruction relieving
the State of the burden of proof as set out in Subsection I above denied Mr.

Quintero a fair trial and due process of law. See Chambers v. Mississippi,

410 U.S. 284, 93 S.Ct. 1038 (1973); Spence v. Johnson, 80 F.3d 989, 1000 (5th

Cir. 1996); Parle v. Runnels, 505 F.3d 922 (9th Cir. 2007); Wright v. State,

28 S.W.3d526, 537 (Tex.Crim.App.2000).

Appellant's Petition for Discretionary Review - Page 9
 PRAYER FOR RELIEF

For these reasons, Appellant Mario Quintero respectfully asks the Court

to grant discretionary review, appoint counsel, order further briefing, and
reverse his conviction. In the alternative, he asks the Court to enter any
other order the Court finds appropriate.

SUBMITTED and SUBSCRIBED on this the l£^ day of Jl)U£_ ,2015.
Respectfully submitted,

Marts A. DutM^o
Mario Quintero, Pro Se
TDCJ-CID #1878429
Connally Unit
899 FM 632
Kenedy, Texas 78119

DECLARATION

"I, Mario Quintero, TDCJ-CID #1878429, presently incarcerated in
the Texas Department of Criminal Justice Correctional Institutions
Division at the Connally Unit in Karnes County,.Texas, declare under
penalty of perjury under Chapter 132 of the Texas Civil Practice and
Remedies Code and 28 U.S.C. § 1746, that I have read this Petition
for Discretionary Review, the facts stated in this Petition are true
and correct, and I placed this Petition in the prison mailbox in a
postpaid package on this day.

"Executed on this the ]_£_ day of yJlAJ£, / 2015."

Mario Quintero

Appellant's Petition for Discretionary Review - Page 10
 CERTIFICATE OF SERVICE

I certify that on this the |2^_ day of JuK)&, , 2015, I served the
following parties with a true and correct copy of this Petition for Discre

tionary Review by U.S. mail through the prison mailbox in a postpaid package
to the addresses below:

Edward F. Shaughnessy, III
Attorney at Law
206 E. Locust Street
San Antonio, Texas 78212

State Prosecuting Attorney
P.O. Box 13046
Capitol Station
Austin, Texas 78711

Mario Quintero

Appellant's Petition far Discretionary Review - Page 11
 APPENDIX

Fourth Court of Appeals' Opinion
 jfourtl) Court of Appeals?
g>an Antonio, TEexas

MEMORANDUM OPINION

No. 04-13-00596-CR

Mario Josue QUINTERO,
Appellant

v.

The STATE of Texas,
Appellee

From the 38th Judicial District Court, Medina County, Texas
Trial Court No. 11-07-10748-CR
The Honorable Camile G. Dubose, Judge Presiding

Opinion by: Rebeca C. Martinez, Justice

Sitting: Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice

Delivered and Filed: April 15, 2015

AFFIRMED AS MODIFIED

Mario Josue Quintero was charged with the offense of continuous sexual abuse of a child

against two victims occurring from August 1,2010to September 9, 2012. Thejury found Quintero

guilty as charged in the indictment, and the trial court sentenced Quintero to fifty years'

imprisonment. On appeal, Quintero contends that the trial court erred in: allowing two witnesses

to testify as outcry witnesses; in determining that the child complainants were competent to testify;

and by giving the jury instructions which allowed the jury to find him guilty without requiring it
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to find that two or more acts of sexual abuse were committed thirty days or more apart. We affirm,

but modify the judgment of the trial court to correct a clerical error.

Charge Error

In his first issue, Quintero contends that the trial court erred in giving the jury instructions

that allowed the jury to find him guilty without requiring a finding that two or more acts of sexual

abuse were committed 30 days or more apart. When reviewing alleged charge error, we must first

determine whether error existed in the charge. Sakil v. State, 287 S.W.3d 23, 25 (Tex. Crim. App.

2009). When, as here, the appellant did not object to the alleged error, we will reverse only if the

error is '"so egregious and created such harm'" that the defendant did not receive a fair and

impartial trial. Id. at 26 (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)).

We consider (1)the entirejury charge, (2) the stateof the evidence, including contested issues and

the weight of probative evidence, (3) the parties' arguments, and (4) any other relevant information

found in the record as a whole. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008).

A person commits the offense of continuous sexual abuse of a child if (1) during a period

that is 30 ormore days in duration, the person commits two ormore acts ofsexual abuse;1 and (2)
at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or

older and the victim is a child younger than 14 years of age. Tex. Penal Code Ann. § 21.02(b)

(West Supp. 2014). Although the exact dates of the abuse need not be proven, the offense of
continuous sexual abuse of a child does require proof that the last act of sexual abuse occur on at

least the 29th day after the day of the first act. See id. § 21.02(d) ("The jury must agree

unanimously that the defendant, during a period that is 30 or more days in duration, committed

two or more acts of sexual abuse."); Williams v. State, 305 S.W.3d 886, 890-91 (Tex. App.—

1The acts of sexual abuse do not have to be committed against the same victim.

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Texarkana 2010, no pet.) (requiring State to prove two acts of sexual abuse "committed over a

span of thirty or more days").

Here, the jury charge provided, in pertinent part:

A person commits the offense of Continuous Sexual Abuse of a Child if during a
period that is 30 or more days in duration, the person commits two or more acts of
sexual abuse, regardless of whether the acts of sexual abuse are committed against
one or more victims; and at the time of the commission of each of the acts of sexual
abuse, the actor is 17 years of age or older and the victim is a child younger than
14 years of age.

In order to find the defendant guilty of the offense of Continuous Sexual Abuse of
a Child, you are not required to agree unanimously on which specific acts of sexual
abuse were committed by the Defendant or the exact date when those acts were
committed. However, in order to find the Defendant guilty of the offense of
Continuous Sexual Abuse of a Child, you must agree unanimously that the
Defendant, during a period that is 30 or more days in duration, committed two or
more acts of sexual abuse.

Now bearing in mind the foregoing instructions, if you believe from the evidence
beyond a reasonable doubt that the Defendant, MARIO JOSUE QUINTERO, on or
about [the] 1st [d]ay of August, 2010 through the 9th day of September 2012 in
Medina County, Texas, during a period that was 30 days or more in duration,
committed two or more acts of sexual abuse against [D.B.], [A.V.,] and [D.V.] said
acts of sexual abuse having been violations of one or more of the following penal
laws ... then you will find the Defendant guilty of the offense of Continuous Sexual
Abuse of a Child as charged in the indictment.

Quintero asserts that the application paragraph lowered the State's burden of proof because it

allowed thejury to find him guilty so long as two or more acts of sexual abuse occurred between

August 1, 2010 and September 9, 2012, regardless of whether the acts occurred at least 30 days

apart. In support, Quintero relies on Smith v. State, 340 S.W.3d 41, 50 (Tex. App.—Houston [1st

Dist.] 2011, no pet), in which the jury was instructed that it could find the defendant guilty of

continuous sexual abuse of a child if two or more acts of sexual abuse occurred "on or about the

1st day of December, 2007, through the 1st day of September, 2008, which said time period being
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a period that was 30 days or more in duration" (Emphasis added). The Smith court held that the

instruction was erroneous because it allowed the jury to find the defendant guilty regardless of

whether the acts occurred at least 30 days apart. Id. at 50-51.

The charge before us, however, did not define the time period at issue as a period of 30

days or more in duration as occurred in Smith. Here, the application paragraph tracked the statutory

language of section 21.02(b), and instructed the jury that it could find Quintero guilty if he

committed two or more acts of sexual abuse against D.B., A.V., and D.V. during a period that was

30 days or more in duration. See Tex. Penal Code Ann. § 21.02(b); see also Martinez v. State,

924 S.W.2d 693, 699 (Tex. Crim. App. 1996) (jury charge tracking language of statute is proper

because "[f]ollowing the law as it is set out by the Texas Legislature will not be deemed error on

the part of a trial judge"). This Court recently analyzed a similarly-worded jury charge and held

that it was not analogous to that in Smith. Knowles v. State, No. 04-12-00180-CR, 2013 WL

1149063, at *4-5 (Tex. App.—San Antonio Mar. 20, 2013, pet. ref d) (mem. op., not designated

for publication). Because the jury charge at issue tracked the applicable statutory language and

accurately set out the law applicable to the offense of continuous sexual abuse of a child, we

conclude the trial court did not err in instructing the jury. See id. at *5. Quintero's first issue is

therefore overruled.

Outcry Witnesses

In his second and third issues,Quintero contendsthat the trial court erred in allowing Carlos

Barragan and Maria Villarreal to testify as outcry witnesses. Certain hearsay statements are

admissible in the prosecution of the offense of continuous sexual abuse of a young child. Tex.

Code Crim. Proc. Ann. art. 38.072, § 1 (West Supp. 2014); see Tex. Penal Code Ann.

§§ 21.02(b), (c)(4); 22.021 (West Supp. 2014). The admissible "outcry" statements are those (1)

"that describe the alleged offense" and (2) were made by the child against whom the offense was
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allegedly committed and (3) were made to the first person, eighteen years of age or older, other

than the defendant, to whom the child made a statement about the offense. See Tex. Code Crim.

Proc. Ann. art. 38.072 § 2(a)(1), (2), (3) (West Supp. 2014).

A proper outcry witness is the first adult to whom the complainant makes a statement that

"in some discernible manner describes the alleged offense." Garcia v. State, 792 S.W.2d 88, 91

(Tex. Crim. App. 1990). The statement "must be more than words which give a general allusion

that something in the area of child abuse was going on." Id.; Reed v. State, 91A S.W.2d 838, 841

(Tex. App.—San Antonio 1998, pet. ref d) (statement must be more than "a general allegation of

sexual abuse"). Moreover, the child victim's statement to the outcry witness must describe the

alleged offense, not just any offense. See Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a)(1)(A).

We review the trial court's determination that an outcry statement is admissible under

article 38.072 for abuse of discretion. Garcia, 792 S.W.2d at 92; Knowles, 2013 WL 1149063, at

*l-2. "[A] trial court has broad discretion in determining the admissibility of such evidence. The

exercise of that discretion will not be disturbed unless a clear abuse of discretion is established by

the record." Garcia, 792 S.W.2d at 92. A trial court abuses its discretion if no reasonable view

of the record could support the trial court's ruling. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim.

App. 2012) (reviewing motion for new trial for ineffective assistance of counsel). Under this

deferential standard of review, we view the evidence in the light most favorable to the trial court's

ruling and will not substitute ourjudgment for that of the trial court. Id. Further, we must uphold

the trial court's ruling if it is within the zone of reasonable disagreement. Id.

Maria Villarreal is the mother of A.V. She testified that sometime in 2011, A.V. told her

that Quintero touched his penis. Villarreal was not sure what month it was when A.V. outcried,

but stated that it was probably May or June as they were coming back from Corpus Christi. The

defense objected to Villarreal's designationas the outcry witness on the basis that she did not know
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when the outcry occurred. The court overruled the objection and found Villarreal qualified under

article 38.072.

Carlos Barragan is the father of D.B. Barragan testified that D.B. told him that Quintero

showed him pornography while his mother was in the shower. D.B. also said that Quintero wanted

to perform oral sex on him, and that Quintero asked D.B. to perform oral sex on him. Barragan

testified that D.B. told him those acts occurred. On cross-examination, Barragan could hot recall

when the outcry occurred. The defense objected to Barragan's designation as the outcry witness

because he could not recall details of the outcry. The trial court overruled the objection, and found

Barragan qualified to testify under article 38.072.

On appeal, Quintero argues that Villarreal and Barragan were not proper outcry witnesses

because their statements do not describe acts that were alleged to have been committed by Quintero

and give no indication of the continuing nature and duration of the acts. He argues that their

statements constituted nothing more than words giving a "general allusion that something in the

area of child abuse occurred." The State responds that Quintero's complaints on appeal do not

comportwith the objections made at trial. We agree. At trial, Quintero objected on the basis that

both witnesses did not know exactly when the outcry occurred, yet on appeal, his complaint is that

the outcry witnesses failed to specifically describe the acts alleged in the indictment against him.

The objection made at trial must comport with the error complained of on appeal. See Wilson v.

State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); see also TEX. R. App. P. 33.1 (error must be

preserved by making complaint to trial court stating specific grounds for complaint). Because

Quintero's objections at trial did not comport with his complaints on appeal, he has not preserved

his second and third issues for our review. Accordingly, we overrule Quintero's second and third

issues.

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Competency of Child Complainants

In his last three issues, Quintero argues that the trial court erred in determining that the

child complainants, A.V., D.B., and D.V., were competent to testify. A trial court's determination

of whether a child witness is competent to testify will not be disturbed on appeal absent an abuse

of discretion. Broussard v. State, 910 S.W.2d 952, 960 (Tex. Crim. App. 1995); De Los Santos v.

State, 219 S.W.3d 71, 80 (Tex. App.—San Antonio 2006, no pet.). We review the child's entire

testimony, including his or her responses to qualification questions, to determine whether the trial

court's ruling on competency constituted an abuse of discretion. De Los Santos, 219 S.W.3d at

80-81. A trial court does not abuse its discretion if its ruling was within the zone of reasonable

disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on

reh'g).

A child is competent to testify unless it appears to the court that the child does not possess

sufficient intellect to relate the transactions with respect to which the child is interrogated. Tex.

R. EviD. 601(a)(2); Broussard, 910 S.W.2d at 960; De Los Santos, 219 S.W.3d at 80-81. When a

party challenges the competency of a child witness, the trial court will consider whether the child

witness possesses (1) the ability to intelligently observe the events in question at the time of the

occurrence, (2) the capacity to recollect the events, and (3) the capacity to narrate the events. See

Hogan v. State, 440 S.W.3d 211,213-14 (Tex. App.—Houston [14th Dist.] 2013, pet. ref d). The

third element involves the ability to understand the moral responsibility to tell the truth, to

understand the questions posed, and to frame intelligent answers. See id. at 214. Confusing and

inconsistent responses from a child are not reasons to determine he or she is incompetent to testify;

rather, they speak to the credibility of the testimony. In re A.W., 147 S.W.3d 632, 635 (Tex.

App.—San Antonio 2004, no pet.). The trial court's role is to make the initial determination of

competency, not to assess the credibility or weight to be given the testimony. Id.

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The trial court conducted a competency hearing outside the presence of the jury to

determine whether each child was competent to testify on behalf of the State. A.V. was eleven

years old at the time of trial. He demonstrated that he knew the difference between the truth and

a lie, and promised to only tell the truth. D.B. was ten years old at the time of trial. He, too,

explained the difference between the truth and a lie, and promised to only tell the truth. D.V. was

seven years old at the time of trial. She demonstrated an understanding of the difference between

right and wrong and promised to tell the jury what is "real." Thus, each child demonstrated that

they had the capacity to narrate events, understand the difference between the truth and a lie, and

understand their obligation to tell the truth.

Further, the children's testimony during trial indicated they each had the ability to

intelligently recall and narrate the events, understand the difference between the truth and a lie,

and understand their moral responsibility to tell the truth. Any inconsistencies in the children's

testimony about the specific incidents goes to their credibility, not their competency to testify. De

Los Santos, 219 S.W.3d at 81; In re A.W., \\1 S.W.3d at 635. Based on their answers to the

qualification questions and their testimony as a whole during the proceedings, we conclude the

trial court did not abuse its discretion in determining that the children were competent to testify.

See Upton v. State, 894 S.W.2d 426, 429-31 (Tex. App.—Amarillo 1995, pet. ref d); Dufrene v.

State, 853 S.W.2d 86, 88 (Tex. App.—Houston [14th Dist.] 1993, pet. ref d) (noting that a child

no longer needs to understand the "obligation of the oath," but simply the duty to be truthful).

Quintero's final issues are, therefore, overruled.
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Conclusion

Based on the foregoing reasons, we overrule all of Quintero's issues. Because the

judgment erroneously recites that Quintero was convicted under section "22.02"2 of the Penal

Code, we correct the clerical error and modify the trial court's judgment to reflect that Quintero

was convicted under section "21.02" of the Penal Code. See Tex. Penal Code Ann. § 21.02

(West Supp. 2014). As modified, we affirm the trial court's judgment.

Rebeca C. Martinez, Justice

Do Not Publish

2See Tex. Penal Code Ann. § 22.02 (West Supp. 2014) (aggravated assault).

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