AFFIRMED and Opinion Filed October 30, 2019
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00843-CR
JOSE LEYVA SANTIBANEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F-1875039-I
MEMORANDUM OPINION
Before Justices Bridges, Whitehill, and Schenck
Opinion by Justice Bridges
The State charged appellant Jose Leyva Santibanez with continuous sexual assault of a
child. The jury found him guilty of the lesser-included offense of aggravated sexual assault of a
child and sentenced him to thirty-five years’ confinement. On appeal, he challenges the sufficiency
of the evidence to support his conviction and the jury charge. We affirm the trial court’s judgment.
Background
Appellant and Mother met in 2016. Mother introduced appellant to her daughter (the
complainant), who was seven years old. The three spent a lot of time together before moving into
an apartment around September of 2017.
Mother sometimes left complainant with appellant while she worked at the Courtyard by
Marriott. However, on January 8, 2018, complainant accompanied Mother to work. Two hotel
employees, both familiar with Mother and complainant, noticed complainant looked sad, which
was uncommon. Complainant usually happily talked to others and ran and jumped around the
break room while Mother worked.
The women asked complainant why she looked sad and so tired, and complainant said she
did not sleep well. She then said she did not like appellant because he touched her, but she did not
provide any further information. The women did not remember the details of the conversation
because “everybody was nervous and sad and crying.”
The women waited until Mother returned to the break room to tell her. Unsure how to
proceed with complainant’s abuse allegations, they approached the assistant general manager. He
called CPS to report the allegations and offered to house Mother and complainant at a sister
property because they were afraid to go home.
The next day, the assistant general manager took Mother and complainant to the Children’s
Advocacy Center. Bernadette Martinez, a forensic interviewer with the Children’s Advocacy
Center, interviewed complainant on January 9, 2018. She was eight-years-old at that time. She
told Martinez appellant did things she did not like, which included him touching her breast and
vagina. She said it happened in the bedroom after Mother went to work. Every time it happened,
appellant told her not to tell anyone.
The State indicted appellant for continuous sexual assault pursuant to penal code section
22.021(a)(1)(B)(i) for various sexual acts. The jury found appellant guilty of the lesser-included
offense of aggravated sexual assault under section 22.021(a)(1)(B)(i). This appeal followed.
Sufficiency of the evidence
In his first issue, appellant argues the evidence is insufficient to support his conviction
because the State failed to prove any particular time appellant committed aggravated sexual
assault, and complainant only testified in general terms about the allegations. The State admits
–2–
complainant could not provide specific dates of the sexual abuse; however, she testified in detail
about the abuse and other witness testimony corroborated her allegations thereby providing
sufficient evidence to support his conviction.
In determining the sufficiency of the evidence, the reviewing court considers the evidence
in the light most favorable to the verdict to determine whether any rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. Acosta v. State, 429 S.W.3d
621, 624–25 (Tex. Crim. App. 2014). The jury is the sole judge of credibility and weight to attach
to witness testimony. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
A person commits aggravated sexual assault of a child if a person intentionally or
knowingly causes the penetration of the female organ of a child by any means, and the child is
younger than fourteen years of age. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i). The
testimony of a child victim alone is sufficient to support a conviction. See TEX. CODE CRIM. PROC.
ANN. art. 38.07(a); Lee v. State, 186 S.W.3d 649, 655 (Tex. App.—Dallas 2006, pet. ref’d).
A rational jury could have found the essential elements of the crime beyond a reasonable
doubt. Complainant’s testimony supports the charge in the indictment, which tracked the statutory
language of the penal code. See TEX. PENAL CODE ANN. § 22.021(a)(1). She described what
appellant wore during the touching, how he touched her, and where in the bedroom it occurred.
Her description of what happened did not need to be precise, and she was not expected to express
herself at the same level of sophistication as an adult. See Soto v. State, 267 S.W.3d 327, 332 (Tex.
App.—Corpus Christi 2008, no pet.). “As long as a child communicates to the factfinder that the
touching occurred on a part of the body within the definition of the statute, the evidence is
sufficient.” Jones v. State, 428 S.W.3d 163, 169 (Tex. App.—Houston [1st Dist.] 2014, no pet.);
see also Lee, 186 S.W.3d at 655 (child testimony alone is sufficient to support conviction).
–3–
In addition to complainant’s testimony, the jury heard from Martinez, who said
complainant described the abuse during the forensic interview. To the extent complainant gave
conflicting testimony and repeatedly testified she could not remember certain details, the jury
assessed her credibility and found in favor of the State. See Jackson, 443 U.S. at 319.
Appellant further challenges complainant’s inability to provide temporal specificity of the
sexual abuse. Nevertheless, appellant acknowledges the State is not required to allege a specific
date in the indictment. See Sledge v. State, 953 S.W.2d 253, 255 (Tex. Crim. App. 1997) (en
banc.). It is well-settled the “on or about” language of an indictment allows the State to prove a
date other than the one alleged in the indictment as long as the date is anterior to the presentment
of the indictment and within the statutory limitation period. Id. at 256. Here, the indictment
alleged appellant committed the sexual act “on or about the 19th day of November, 2017.” The
presentment date was February 15, 2018. There is no statute of limitations for aggravated sexual
assault of a child. See TEX. CODE CRIM. PROC. ANN. art. 12.01(1)(B). Therefore, the State was
required to prove the sexual act occurred before February 15, 2018.
Martinez explained to the jury that children struggle to pinpoint exact dates. Instead of
asking date and time questions, she sometimes uses holidays, such as Halloween, Thanksgiving,
and Christmas to find out if the abuse happened before or after a holiday.
During the forensic interview, complainant said appellant touched her during Christmas
break and before Halloween. Complainant lived with appellant during this time, and Mother
recalled leaving complainant with appellant around October 31, 2017. Although complainant
could not provide specific incidents and dates, Martinez established a timeline by asking
complainant her age when the abuse started (she said seven) and ended (she said eight).
Complainant turned eight on December 12, 2017. The State asked Martinez, “So just to be clear,
that the time span that she gave you was some time before Halloween and sometime during the
–4–
Christmas break?” and Martinez answered, “Correct.” Thus, viewed in the light most favorable to
the verdict, a rational jury could have found appellant abused complainant prior to presentment of
the indictment and within the statute of limitations.
Our duty is to ensure the evidence presented supports a conclusion that appellant
committed aggravated sexual assault of a child. The record contains such evidence and “was not
a determination so outrageous that no rational trier of fact could agree.” Smith, 2019 WL 1615353,
at *7 (quoting Wirth v. State, 361 S.W.3d 694, 698 (Tex. Crim. App. 2012)). Appellant’s first
issue is overruled.
Amended Indictment
In his second issue, appellant argues the trial court erred by instructing the jury on a theory
of sexual abuse not alleged in the amended indictment, and he was egregiously harmed by the
jury’s consideration of the improperly included offense. The State responds it effectively amended
the indictment to include the offense of contact under section 22.021(a)(1)(B)(iv), but regardless,
error, if any, is harmless because the jury did not convict appellant of that offense.
Assuming without deciding that the State’s amendment was not effective, appellant cannot
show harm by the jury charge’s inclusion of the section 22.021(a)(1)(B)(iv) allegation. Appellant
did not object to the charge at trial; therefore, reversal is required only if the alleged error caused
egregious harm. See Dolkart v. State, 197 S.W.3d 887, 893 (Tex. App.—Dallas 2006, pet. ref’d).
Errors that result in egregious harm are those that “affect the very basis of the case, deprive the
defendant of a valuable right, or vitally affect a defensive theory.” Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1985) (en banc). However, under this standard, the record must show
the defendant suffered actual, rather than merely theoretical, harm from jury charge error. See Ngo
v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005).
–5–
Appellant asserts he suffered egregious harm because (1) the charge incorrectly left the
jury with the impression it could convict under section 22.021(a)(1)(B)(iv); (2) the State informed
the jury during voir dire that act was a part of its case for continuous sexual assault; (3) the State
referenced section 22.021(a)(1)(B)(iv) contact during closing; and (4) the State’s evidence
supporting section 22.021(a)(1)(B)(i) was weak. However, the jury did not find appellant guilty
of aggravated sexual assault of a child under section 22.021(a)(1)(B)(iv). Accordingly, appellant
failed to establish he suffered any actual, rather than merely theoretical, harm. “Egregious harm”
is a high and difficult standard to meet. See Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim.
App. 2015). Appellant has failed to meet this high standard. We overrule appellant’s second issue.
Conclusion
The judgment of the trial court is affirmed.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
180843f.u05
–6–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOSE LEYVA SANTIBANEZ, Appellant On Appeal from the Criminal District Court
No. 2, Dallas County, Texas
No. 05-18-00843-CR V. Trial Court Cause No. F-1875039-I.
Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee Justices Whitehill and Schenck
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered October 30, 2019
–7–