                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 DAVID ESPINOZA,                                 §
                                                                  No. 08-14-00268-CR
                              Appellant,         §
                                                                     Appeal from the
 v.                                              §
                                                               120th Judicial District Court
                                                 §
 THE STATE OF TEXAS,                                            of El Paso County, Texas
                                                 §
                               Appellee.                           (TC# 20120D03772)
                                                 §

                                           OPINION

       A jury convicted Appellant David Espinoza of the offenses of aggravated sexual assault of

a child younger than fourteen years of age alleged in count one of the indictment and of indecency

by contact with a child under the age of 17 alleged in count two of the indictment. The jury

assessed his punishment at twenty-one years’ confinement in the Texas Department of Criminal

Justice (TDJC) and a $5,000 fine for count one and at five years’ confinement in the TDJC and a

$5,000 fine for count two. The trial court sentenced Appellant accordingly and ordered the

sentences to be served consecutively.

                                        BACKGROUND

       The complainant lived in a very small apartment with her grandparents, her three siblings,

her mother, and Appellant, who was her mother’s common-law husband. The apartment was so

small Complainant and her family slept in the living room on a couch, love seat, and an air
mattress. They had lived in a mobile home before moving into the apartment and were in the

process of moving into a larger place of their own.

       On the night of July 15, 2012, into July 16, 2012, the night of Appellant’s arrest, the

Complainant was an eleven-year-old girl. Mother left the apartment sometime in the early

afternoon to do laundry. Complainant had gone to play with her cousins at the apartment of her

Aunt Erica, Appellant’s sister. Appellant’s sister’s son was visiting at Complainant’s apartment.

Appellant was out drinking with his friends, and eventually his wife called him because she wanted

him to come home. She told him to come pick up their nephew, to take him home while he picked

up Complainant at the nephew’s home. Mother waited for some time for Appellant to return, but

when Appellant did not show up at their apartment, Mother decided to take her nephew home and

pick up Complainant.

       When she left the apartment she saw, parked on the side of the apartments, a pickup

Appellant would sometimes drive but her aunt often borrowed. Mother continued to her sister-in-

law’s apartment and dropped off her nephew, but Complainant was not at the sister-in-law’s

apartment. Mother went back home and noticed the pickup was still parked beside the apartments,

so she stopped beside the truck, got out of her truck, walked over to the other truck and opened the

driver’s side door. Appellant was sitting in the driver’s seat, but Complainant was sitting in the

passenger’s seat with her pants and underwear down around her ankles. Appellant pointed out that

his pants were up, and he claimed he was doing nothing to Complainant other than “checking her.”

When Complainant got into the back seat of Mother’s vehicle, she began crying and said “her dad

tried to do the nasty with her.”

       Mother asked Complainant if she wanted her to call the police, and Complainant said she

did.



                                                 2
           When Mother asked Complainant what had happened, she said that Appellant had tried to

“do the nasty” with her and had tried to put his penis inside her. Mother found a Sheriff’s deputy

stopped nearby and told him what had just happened. When the deputy approached Appellant,

who was sitting on the tailgate of his truck at the apartment complex, Appellant replied,

“[w]hatever they said is hearsay.” The officer read Appellant his Miranda1 rights and arrested

him.

           Complainant also gave a statement at that time and was taken to Sierra Hospital, where she

underwent a sexual-assault exam and tested positive for chlamydia. Interviews revealed that this

was not Complainant’s first outcry regarding being molested by Appellant. Complainant had made

an outcry to her mother once before, regarding an incident in a trailer, but Mother had not believed

the accusation. In the first outcry, Complainant had told Mother that on a previous date, Appellant

had pulled Complainant’s pants down and touched her genitals over her underwear while she was

helping Appellant move some items left behind at a trailer where the family had lived previously.

Then, on July 15, 2012, but before the assault in the truck, while Complainant slept on an air

mattress in the living room of the apartment, Appellant had pulled down both his and

Complainant’s pants and underwear and, despite Complainant’s attempts to get away from him,

pulled her toward him and touched her genitals with his penis.

                                                Appellate Issues

           Appellant originally raised a single issue:

           The trial court constructively amended Count II of the indictment by alleging in the
           jury charge a different ‘on or about’ offense date than that alleged in Count II, in
           that the amended ‘on or about’ offense date corresponded to a different indecency
           with child offense.

           In a supplemental brief, Appellant raises what he designates as a supplemental point:


1
    Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

                                                         3
       Appellant’s conviction of indecency with child represents a multiple punishment
       for the same offense, and must therefore be vacated pursuant to the Double
       Jeopardy Clause of the Fifth and Fourteenth Amendments.

                                    Original Point on Appeal

       We first address the complaint Appellant raised in his original brief on appeal, as we

understand the complaint. The indictment alleged, in pertinent part of Count One, that:

       [O]n or about the 15th day of July, 2012 and anterior to the presentment of this
       indictment, in the County of El Paso and State of Texas, DAVID ESPINOZA,
       hereinafter referred to as Defendant,

       Paragraph A
       did then and there intentionally or knowingly cause the penetration of the sexual
       organ of [Complainant], a child who was then and there younger than 14 years of
       age, by the means of the sexual organ of DAVID ESPINOZA,

       Paragraph B
       did then and there intentionally or knowingly cause the sexual organ of
       [Complainant], a child who was then and there younger than 14 years of age, to
       contact the sexual organ of DAVID ESPINOZA . . . . [Emphasis added].

       COUNT TWO - 2012-07407

               And the Grand Jurors of aforesaid, upon their oaths aforesaid, do further
       say, charge and present in and to said Court at said term that on or about the 1st day
       of January, 2011 and anterior to the presentment of this indictment, in the County
       of El Paso and State of Texas, DAVID ESPINOZA, hereinafter referred to as
       Defendant,

       did then and there with intent to arouse and gratify the sexual desire of the said
       Defendant, intentionally and knowingly engage in sexual contact with
       [COMPLAINANT], hereinafter referred to as Complainant, a child who was then
       and there younger than 17 years of age and not the spouse of said Defendant by
       then and there touching any part of the genitals of said Complainant. [Emphasis
       added].

       The trial court instructed the jury in the charge that:

               On or about does not mean a certain date, but means a date anterior to
       the presentment of the indictment, and within the statute of limitations. The date
       of the indictment in this case is August 14, 2012. There is no statute of
       limitations for these offenses.


                                                  4
                                             .      .      .

          AS TO COUNT II:

                                             .      .      .

                If you find from the evidence beyond a reasonable doubt that on or about
          the 15thday of July, 2012, in El Paso County, Texas, the Defendant, DAVID
          ESPINOZA [committed the offense alleged in Count II of the Indictment . . .
          .][Emphasis added].


                                          Original Complaint

          In the original brief, Appellant contends the jury charge, instead of tracking the indictment,

was changed by the trial court and, therefore, allowed the jury to convict of sexual assault of a

child under fourteen years of age, indecency with a child younger than fourteen years of age or

younger than seventeen years of age, and that the jury charge, thereby, created confusion that forms

the basis of Appellant’s sole complaint on appeal. Appellant failed to raise his jury charge

complaints at trial and brings them forward for the first time on appeal.

          Count One of the indictment alleges that, on or about July 15, 2012, Appellant committed

aggravated sexual assault of a child younger than 14 years of age by intentionally or knowingly

causing Appellant’s sexual organ to penetrate the child’s sexual organ or by causing the child’s

sexual organ to contact Appellant’s sexual organ. In Count Two, the indictment alleged that, on

or about January 1, 2011, Appellant committed the offense of indecency with a child by, with

intent to arouse and gratify his sexual desire, touching any part of the genitals of Complainant, a

child younger than 17 years of age and not the spouse of Appellant.

          The jury charge, however, instructed the jury to consider the date actually alleged in Count

Two of the indictment, on or about July 15, 2012, in considering Appellant’s guilt as to both

counts.


                                                    5
            Neither the State nor Appellant objected to the jury instruction. In his original brief on

appeal, Appellant argues that by improperly changing the “on or about” January 1, 2011 date

alleged in Count Two of the indictment to July 15, 2012, in the jury charge, the jury was in effect

instructed to convict Appellant of an indecency offense not alleged in the indictment. Appellant

further argues:

            If the trial court had retained the January 1, 2011 ‘on or about’ date alleged in Count
            II of the indictment, the jury would have known to confine its analysis to the earlier
            indecency with child offenses which [Complainant] testified had occurred two
            years earlier – one of which had allegedly taken place on an air mattress in her
            apartment and the other at a trailer house she and [Appellant] had allegedly visited
            to ‘get something.’

That is, he explained, the change of the “on or about” offense date of Count Two resulted in a

constructive amendment to the indictment, forcing the jury to convict Appellant of the same

“aggravated sexual assault” offense of which the jury had convicted Appellant in Count One of

the indictment. Appellant also contends:

                    By reason of this constructive amendment of the indictment, the jury never
            considered whether Espinoza was guilty of these two previous indecency with child
            offenses which [Complainant] testified that [Appellant] had allegedly committed
            against her ‘on or about’ January 1, 2011, as alleged in Count II of the indictment.

            The State first suggests Appellant waived his complaint because he failed to object to any

error in the jury charge. The general rule is that mandated by Malik v. State.2 We measure whether

the evidence presented at trial was sufficient to support a conviction by comparing it to “the

elements of the offense as defined by the hypothetically correct jury charge for the case.”3 The

hypothetically correct jury charge is one that “accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the


2
    Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997).
3
    Id., at 240.


                                                        6
State's theories of liability, and adequately describes the particular offense for which the defendant

was tried.”4 “The law as ‘authorized by the indictment’ includes the statutory elements of the

offense” and those elements as modified by the indictment.5

           The Texas Court of Criminal Appeals has provided guidance in how both trial and appellate

courts should address offenses involving repeated commission of the same or essentially the same

offense in Sledge v. State.6 If either Appellant or the State is addressing a lack of notice issue,

neither side requested notice of either a specific date or a specific location. The Sledge court

explained a proper approach to addressing an offense that includes commission of multiple acts on

non-specific, multiple dates:

                   This Court has held that the State need not allege a specific date in an
           indictment. Mitchell v. State, 168 Tex.Crim. 606, 330 S.W.2d 459, 462 (1959). It
           is well settled that 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. See art. 21.02(6); Scoggan v. State, 799 S.W.2d 679, 680 n. 3
           (Tex.Crim.App. 1990)(‘[t]he State is not bound by the date alleged in the
           indictment . . . so long as the date proved is a date anterior to the presentment of
           indictment and the crime's occurrence is not so remote as to be barred by
           limitation.’); Thomas v. State, 753 S.W.2d 688, 692 (Tex.Crim.App. 1988)
           (‘[w]here an indictment alleges that some relevant event transpired “on or about” a
           particular date, the accused is put on notice to prepare for proof that the event
           happened at any time within the statutory period of limitations.’).

                   In the instant case, the dates of the offenses proven—1986 and 1987—are
           anterior to the presentation of the indictment on December 5, 1989, and are within
           the ten year limitation period. See art. 12.01(2)(D). Therefore under this Court’s
           construction of art. 21.02, it was allowable for the State to proceed on events that
           occurred in 1986 and 1987, even though the indictment alleged that the offenses
           occurred ‘on or about August 31, 1988.’7


4
    Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex.Crim.App. 2013).
5
    Daugherty, 387 S.W.3d at 665.
6
    Sledge v. State, 953 S.W.2d 253 (Tex.Crim.App. 1997).
7
    Sledge, 953 S.W.2d at 255-56.


                                                         7
           While it is better practice for a defendant to request as much specificity as possible,

especially as to those things that distinguish the specific act falling within the description of the

offense, failure to request specificity does not necessarily render those offenses proved at trial as

extraneous. Nor do discrepancies between those details provided in response to the request for

notice and those proved at trial necessarily render the offenses proved that do not strictly comply

with the discovery provided in response to the request for specificity extraneous offenses.

           Six months after filing his initial brief on appeal, Appellant filed a supplemental brief,

arguing that the order that Appellant’s sentences be served consecutively constituted a violation

of the State and Federal prohibitions against double jeopardy.8 In his Supplemental Brief on

appeal, Appellant first raises a double jeopardy issue. The State responded with a Supplemental

Letter of Authorities, pointing out that this issue had been addressed in the original State’s brief

when Appellant briefly addressed the issue in his original brief, pointing out that there was no

double jeopardy violation where there was evidence of multiple incidents of contact and

penetration that could have formed the basis of each count. The State directed this Court to Loving

v. State9 in support of its argument that the contact did not violate the Double Jeopardy Clause

where there were multiple separate incidents of contact and penetration that could have formed the

basis for each count.

           The record contains testimony that Appellant committed indecency with a child by contact

and by exposure in the truck the night Appellant was arrested, on an earlier occasion in their

apartment while Complainant was on an air mattress, and on another earlier date in a trailer where

the family used to live. In all, Complainant testified the Appellant had been engaging in sexual


8
 Ex parte Ervin, 991 S.W.2d 804, 817 (Tex.Crim.App. 1999); Bigon v. State, 252 S.W.3d 360, 364
(Tex.Crim.App. 2008).
9
    Loving v. State, 401 S.W.3d 642, 649 (Tex.Crim.App. 2013).

                                                        8
indecency and sexual assault of her for two or three years. That is, there is sufficient evidence in

the record from which the jury could have found sufficient evidence in the record that, if believed

beyond a reasonable doubt, would have supported the jury’s verdicts as to the allegations in both

counts of the jury charge without violating Double Jeopardy protections.              The trial court

specifically instructed the jury that the “on or about” dates alleged meant the State was not required

to prove a specific date and the jury was not required to find the specific date named either in the

indictment or in the jury charge.

           The record provides evidence from which a jury could have concluded beyond a reasonable

doubt that Appellant's conduct violated the indecency-with-a-child statute two separate times, both

by contact and by exposure, and thus multiple punishments were not jeopardy barred.

           As the Texas Court of Criminal Appeals has repeatedly instructed us:

                   This Court has held that the State need not allege a specific date in an
           indictment. Mitchell v. State, 168 Tex.Crim. 606, 330 S.W.2d 459, 462 (1959). It
           is well settled that 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. See art. 21.02(6); Scoggan v. State, 799 S.W.2d 679, 680 n. 3
           (Tex.Crim.App. 1990)(‘[t]he State is not bound by the date alleged in the
           indictment . . . so long as the date proved is a date anterior to the presentment of
           indictment and the crime's occurrence is not so remote as to be barred by
           limitation.’); Thomas v. State, 753 S.W.2d 688, 692 (Tex.Crim.App.
           1988)(‘[w]here an indictment alleges that some relevant event transpired “on or
           about” a particular date, the accused is put on notice to prepare for proof that the
           event happened at any time within the statutory period of limitations.’)10

           Appellant asserts that because the July 15, 2012 date of the aggravated sexual assault and

Appellant’s arrest was conclusively established, “[n]o confusion exists in the trial record regarding

the July 15, 2012 offense date as being the offense date relating to [C]ounts I and II.” But this

assertion is readily controverted by the record, which, as discussed in the State's original brief,


10
     Sledge, 953 S.W.2d at 255-56.


                                                    9
includes evidence from multiple witnesses, including Mother’s admission of Complainant’s earlier

outcry that she failed to believe, and evidence from Complainant and from Appellant himself, of

multiple, separate, and distinct offenses.

           Thus, because the jury was presented with evidence of multiple, separate sexual offenses

alleged to be committed by Appellant against Complainant, the date alleged as the date of the

offense alleged in Count One will not control regarding an offense alleged to have occurred on an

earlier or different offense date.11 But again, Appellant’s stated rule of law is not on point.

           The jury was instructed in Count Two of the indictment that the offense was committed on

one date but, in the jury charge, to consider whether the evidence proved a different date, that date

alleged in the indictment as the date the offense set out in Count One was committed. Although

Yzaguirre dealt with ineffective assistance of counsel, the Court of Criminal Appeals has

explained,

                  Appellant was convicted of aggravated sexual assault of a child by anal
           intercourse. The indictment alleged that the offense occurred ‘on or about April
           23, 1995.’ However, the State introduced no evidence of such conduct occurring
           on April 23, 1995. Instead, the State elicited testimony from the child that around
           the Thanksgiving holidays during the preceding year, ‘[appellant] put his penis in
           my rear,’ and an affirmation that he remembered ‘other times last year when
           something like this happened.’ Appellant's trial attorney neither objected to the
           testimony nor asked for a limiting instruction.12

                                             .      .      .

                   This case is governed by Sledge. In the absence of evidence that the offense
           occurred on April 23, 1995, the State was entitled to rely upon an instance of prior
           conduct occurring during the preceding year that otherwise met the description of
           the offense in the indictment. Hence, had counsel objected and asked for a limiting
           instruction, the trial court would have properly denied the objection and request as
           to at least one of the prior instances of conduct, and the jury would have had
           sufficient evidence upon which to convict the appellant. The burden of showing

11
     Id.
12
     Yzaguirre, 957 S.W.2d at 39.


                                                   10
           prejudice under Strickland is upon the appellant. Because sufficient evidence upon
           which to convict appellant would have existed even absent the alleged
           ineffectiveness, and no other reason for finding prejudice is apparent, we find that
           appellant has failed to meet his burden.13 [Citations omitted].

           The above reasoning controls the case now before this Court. The notice and unanimity

rules that are of constitutional magnitude in most criminal cases have been set aside when we

address cases in which young children are the complainants, especially in sexually-based cases.14

Our courts have pointed out that young children often are unaware of an exact date or lack the

intellectual maturity to pinpoint dates. The courts have held that notice requiring specificity in

pleading an exact date must give way to protection of the very young.15

           Nowhere in the record does Appellant request more specificity than that provided either by

the indictment or any other form of accusation or discovery. The jury instruction involving the

date different from that alleged in the indictment drew no objection. Nor is there any complaint

in the record that the date contained in the jury instruction is in any way an impossible date or a

date that conflicts with the rule of Malik.16

           And although Appellant cites Yzaguirre for the proposition that the absence of evidence to

show that the offense occurred on a date other than the one alleged dictates that “the date alleged

will be controlling and not an earlier or different offense date,” the Yzaguirre Court made no such

holding. Instead, relying on Sledge v. State,17 it held that “[i]n the absence of evidence that the

offense occurred on [the specific date alleged in the indictment], the State was entitled to rely upon


13
     Yzaguirre, 957 S.W.2d at 39.
14
     Render v. State, 316 S.W.3d 846 (Tex.App.—Dallas 2010, pet. ref’d).
15
     Yzaguirre, 957 S.W.2d at 39.
16
     Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997).
17
     Sledge v. State, 953 S.W.2d 253 (Tex.Crim.App. 1997).


                                                        11
an instance of prior conduct occurring during the preceding year that otherwise met the description

of the offense in the indictment.”18

           In any case, as discussed above and in the State's original brief, the record in this case

includes evidence of multiple, separate, and distinct offenses: evidence that other offenses

occurred on dates other than the one alleged in the indictment. Thus, even if the Yzaguirre rule of

law as argued by Appellant is correct, it would not apply to the facts of this case. Based on the

record in the case now before this Court, the jury's convictions for both the greater offense of

aggravated sexual assault of a child in Count One and the lesser (but not included) offense of

indecency with a child in Count Two support the jury’s verdicts of guilt beyond a reasonable doubt

and were not jeopardy barred.

           We, therefore, overrule Appellant’s issues on appeal and affirm the trial court’s judgment

on appeal as to both Counts One and Two. And because the record supports the verdicts of two

separate convictions, we overrule Appellant’s challenge to the trial court’s ordering the sentences

be served consecutively.

           Having overruled Appellant’s issues on appeal, we affirm the trial court’s judgment.



January 31, 2019
                                                LEE ANN DAUPHINOT, Judge

Before McClure, C.J., Rodriguez, J., and Dauphinot, Judge
Dauphinot, Judge (Sitting by Assignment)

(Do Not Publish)




18
     Yzaguirre, 957 S.W.2d at 39.


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