
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-09-00501-CR


Randy Ates, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 427TH JUDICIAL DISTRICT
NO. D-1-DC-06-302099, HONORABLE JON N. WISSER, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		We withdraw our opinion of December 10, 2010, and substitute the following opinion
in its place. Appellant's motion for rehearing is denied.
		Randy Ates was convicted of one count of indecency with a child by contact and three
counts of aggravated sexual assault of a child.  See Tex. Penal Code Ann. §§ 21.11, 22.021(a)(1)(B)
(West Supp. 2010).  Punishment was assessed at twenty years' confinement for the indecency count
and forty years' confinement for each assault count, all sentences to run concurrently.  Ates appeals,
arguing that (1) the evidence against him was legally and factually insufficient; (2) the jury charge
did not properly specify on which of the many alleged incidents of abuse the State elected to seek
conviction; (3) the jury charge contained erroneous definitions of "intentionally" and "knowingly"
as those terms pertained to the sexual-assault offenses; (4) the trial court erred by allowing a
detective to testify that during an interview she found Ates's victim to be "truthful"; and (5) the trial
court erred by allowing a child witness to testify to events he allegedly witnessed when he was
approximately two years old.  We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND
		A.A., the alleged victim in this case, testified that Ates sexually assaulted her many
times over a several-year period.  The first assault, which the trial participants dubbed the
"bathroom" incident, allegedly occurred when A.A. was approximately six years old.  Ates was
living in A.A.'s home at the time along with his girlfriend and the mother of his children, Debbie
Duran (A.A.'s aunt).  A.A. testified that one day while she and Ates were the only people at home,
Ates came into the bathroom as A.A. was finishing using it.  Ates allegedly told A.A. to sit
back down on the toilet.  He then allegedly took off her pants, took off his own pants, and
proceeded to rub his penis on her vagina until he ejaculated.  Afterwards he allegedly told A.A. to
take a bath or shower. (1)
		A second group of incidents, which the trial participants dubbed the "master
bedroom" incidents, occurred when A.A. was approximately eight years old.  A.A. was still living
with Ates, Duran, and their children at the time, but in a different house from the one in which the
bathroom incident allegedly occurred.  A.A. testified that on occasions when Ates was the only adult
at home with the children, he would frequently assign them "chores."  A.A.'s "chore" was always
to "clean" Ates's bedroom.  While the other children did chores elsewhere in the house, Ates would
allegedly carry A.A., kicking and screaming, to his bedroom, where he would lay her on the bed and
undress her.  He would then allegedly either perform oral sex on her or remove his own clothes, lay
on top of her, and rub his penis on her vagina until he ejaculated.  A.A. testified that such incidents
occurred more than fifteen times.  On one occasion, A.A. tried to resist by picking up a bedside
phone and hitting Ates in the head with it.  A.A. testified that Ates "punished" her by flipping her
over and penetrating her anus with his penis. (2)
		The third incident, which the trial participants dubbed the "van" incident, also
occurred when A.A. was approximately eight years old.  A.A. testified that Ates occasionally drove
her and the other children to a neighborhood swimming pool.  Ates would let the other children exit
his van to play in the pool but would make A.A. stay in the van with him.  A.A. testified that Ates
would remove her clothes, remove his own clothes, lie on top of her, and rub his penis on her vagina
until he ejaculated.  She also testified that Ates would occasionally "barely" penetrate her vagina
with his penis.  On the occasion that was dubbed the "van" incident in the trial court, A.A. recalled
that Ates used a strawberry-scented lubricant.
		A.A. did not report Ates's abuse until she was approximately fifteen years old. 
Between the ages of 10 and 15, A.A. did not live with Ates; rather, she lived with her mother and
her mother's boyfriend.  Her mother's boyfriend sexually assaulted A.A. during that time, eventually
resulting in her becoming pregnant.  In the course of explaining the pregnancy to her family and
boyfriend, A.A. revealed that she had been abused by Ates.
		A.A.'s family reported her abuse to the police, who began investigating.  Detective
Jissett Gaslin interviewed A.A. and then interviewed Ates.  Eventually Detective Gaslin obtained
a warrant for Ates's arrest.  A grand jury indicted Ates for three counts of aggravated sexual assault
of a child, three counts of indecency with a child by contact, and four counts of indecency with a
child by exposure.  Ates pleaded not guilty and went to trial.
		At trial, A.A. testified to the abuse she suffered at Ates's hands.  Ates's son, Xavier,
also testified.  Xavier had lived with Ates and A.A. during the period when Ates was allegedly
abusing A.A.  Xavier testified that once, at age two, he witnessed Ates touching A.A. while both
were naked. (3)  The incident allegedly occurred in Ates's bedroom.  Xavier testified that during the
incident a pornographic videotape was playing on a television in the room. 
		Xavier's sister, Sabrina, who also lived with Ates and A.A. during the period when
Ates was allegedly abusing A.A., testified that she once heard A.A. scream "help" and "stop it"
while A.A. was alone in a room with Ates.  Sabrina testified that at the time she thought A.A. was
screaming because she was being spanked.
		Xavier and Sabrina's mother, Debbie Duran, testified that on one occasion when she
was living with Ates, she entered a bedroom and saw Ates leaning over a bed in which A.A. was
lying under the covers.  Ates had his hand under the covers, and Duran testified that it "d[idn't] look
right."  Duran asked Ates what was going on, and he said that he was trying to recover a "sippy cup"
that A.A. was hiding under the covers.  Duran was suspicious and asked A.A. if Ates was telling the
truth.  A.A. initially replied that he was, though she testified that she eventually told Duran he was
not.  Duran, however, did not testify that A.A. eventually said Ates was lying.
		  Sally Martinez-Cortez was Ates's girlfriend at the time Ates was arrested.  She
testified that after the police interviewed Ates, he came to her house and "gutted" her dishwasher so
that he could hide in it if the police came to arrest him.
		Police officer David Nordstrom testified that when he went with a group of officers
to arrest Ates at the house where Ates was staying, Ates climbed out the back window and
attempted to flee.  
		At the jury-charge conference, the parties discussed the State's need to elect a single
instance of abuse as the basis for each count in the charge.  The court denoted the instances the State
elected by inserting "bathroom," "master  bedroom," and "van" in parentheses under each of the
counts in the charge.  Ates objected to this method of denoting the State's elections, arguing that the
"bathroom" and "master bedroom" counts should specify the addresses of the houses in which they
occurred (4) and the "van" count should specify that it occurred "in a parking lot at a public swimming
pool."  The court overruled this objection.
		The jury charge ultimately contained seven counts.  On the basis of the bathroom
incident, the charge contained one count of aggravated sexual assault, one count of indecency with
a child by contact, and one count of indecency with a child by exposure.  On the basis of the master
bedroom incidents, the charge contained one count of aggravated sexual assault involving oral sex,
one count of aggravated sexual assault involving anal penetration, and one count of indecency with
a child by contact.  Finally, on the basis of the van incident, the charge contained one count of 
indecency with a child by contact.  The charge instructed the jury that if it found Ates guilty on the
assault counts arising from the bathroom and bedroom incidents, it should not go on to consider the
indecency counts arising from those incidents.
		The jury found Ates guilty on all three bathroom- and bedroom-related assault counts. 
Accordingly, it did not reach the bathroom- and bedroom-related indecency counts.  The jury also
found Ates guilty on the van-related indecency count.  Ates elected for the court to assess
punishment.  The court imposed a forty-year sentence for each of the assault counts and a twenty-year sentence for the indecency count.  Ates appeals.

STANDARD OF REVIEW
		When an appellant challenges the sufficiency of the evidence supporting his
conviction, we examine all of the evidence adduced at trial in the light most favorable to the verdict
and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. 
Brooks v. State, No. PD-0210-09, 2010 Tex. Crim. App. LEXIS 1240, at *14 (Tex. Crim. App.
Oct. 6, 2010). (5)
		A claim of jury-charge error is reviewed using the procedure set out in
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).  Barrios v. State, 283 S.W.3d 348,
350 (Tex. Crim. App. 2009).  The first step is to determine whether there was error in the charge. 
Id.  If there was error and appellant objected to the error at trial, reversal is required if the error "is
calculated to injure the rights of the defendant," which means that there is "some harm."  Id.  If the
error was not objected to, it must be "fundamental" to warrant reversal, which mean that it was so
egregious and created such harm that the defendant did not have a fair and impartial trial.  Id.
		We review trial court rulings on the admissibility of evidence for abuse of discretion. 
Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).  We will uphold a trial court's
determination on the admissibility of evidence if it is reasonably supported by the record and correct
under any applicable legal theory.  Id.
 
DISCUSSION
		Ates raises several issues on appeal.  First, he argues that the evidence against him
was legally and factually insufficient.  Second, he argues that the jury charge did not properly specify
the alleged incidents of abuse on which the State elected to seek conviction.  Third, he argues that
the jury charge contained erroneous definitions of "intentionally" and "knowingly" as those terms
pertained to the sexual-assault offenses.  Fourth, he argues that the trial court erred by allowing a
detective to testify that during an interview she found A.A. to be "truthful."  Fifth, he argues that the
trial court erred by allowing Xavier to testify to events he allegedly witnessed when he was
approximately two years old.  We will address these arguments in turn.

Sufficiency of the Evidence
		Ates argues that the evidence adduced at trial was legally and factually insufficient
to sustain his conviction.  Because the court of criminal appeals recently did away with factual-sufficiency review, see Brooks, Tex. Crim. App. LEXIS 1240, at *2, we will consider only whether
the evidence was legally sufficient.  See id. (holding that the "legal-sufficiency standard is the only
standard that a reviewing court should apply in determining whether the evidence is sufficient to
support each element of a criminal offense that the State is required to prove beyond a
reasonable doubt").
		Ates argues that the evidence was insufficient for several reasons.  First, he argues
that there was no evidence he owned a van at the time the van incident allegedly occurred. 
Specifically, he notes that his certificate of title for the van was dated 2002, whereas the van incident
allegedly occurred some time between 1996 and 2000.  This apparent discrepancy does not establish
that the jury was unreasonable in finding that Ates assaulted A.A. in the van; the jury could have
concluded that Ates possessed the van before he held title to it, that A.A. was mistaken about when
the van incident occurred, or that some other fact accounted for the discrepancy.   The jury is entitled
to weigh and resolve conflicts in the evidence and draw reasonable inferences therefrom. 
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).  That being the case, we cannot say
the jury acted unreasonably in crediting A.A.'s testimony about the van incident and minimizing the
significance of the fact that Ates may not have held title to the van when it occurred.  
		Second, Ates argues that much of the testimony against him was characterized by
"objective unlikelihood."  For example, he argues that the purported "logistics" of the bathroom
incident were dubious. (6)  We take this essentially to be an argument that A.A.'s testimony about the
bathroom incident was not credible.  Witness credibility is, however, the exclusive province of the
jury, and we will not second-guess the jury's determinations.  See Brown v. State, 270 S.W.3d 564,
568 (Tex. Crim. App. 2008).  Ates attacks A.A.'s credibility in other ways, saying that her testimony
about the duration of the bathroom incident was dubious, that her testimony about who else was in
the house during the bathroom incident was inconsistent, and that her testimony about the bedroom
incident conflicted with Xavier's.  He also highlights the many-year delay between when A.A. was
allegedly abused and when she reported her abuse.  Again, we cannot second-guess the jury's
determination that A.A. was credible.  Clayton, 235 S.W.3d at 778.
		Finally, Ates argues that A.A.'s testimony was not corroborated because both the
"sippy cup" incident observed by Duran and the screaming heard by Sabrina were "objectively non-suspicious."  A.A.'s testimony, however, did not require corroboration.  See Tex. Crim. Proc. Code
Ann. art. 38.07(a), (b)(1) (West 2005).  
		In sum, Ates does not demonstrate that the evidence was insufficient to support his
conviction.  We overrule Ates's first issue.

State's Election and the Jury Charge
		Ates argues that the jury charge did not properly specify the alleged incidents of abuse
on which the State elected to seek conviction.  At the jury-charge conference, the parties discussed
the State's need to elect a specific instance of abuse as the basis for each count in the charge.  The
court ultimately denoted the instances the State elected by inserting "bathroom," "master  bedroom,"
or "van" in parentheses under each count in the jury charge.  Ates objected to this method of
denoting the State's elections, arguing that the "bathroom" and "master bedroom" counts should
specify the addresses of the houses in which they occurred and the "van" count should specify that
it occurred "in a parking lot at a public swimming pool."  The court overruled this objection.  Ates
argues that doing so was error because the lack of geographical specificity meant the jury might not
limit its deliberation on each count to a specific incident.  See Phillips v. State, 193 S.W.3d 904, 910
(Tex. Crim. App. 2006) (one purpose of election is to ensure jurors unanimously agree one specific
incident occurred constituting charged offense).  
		We disagree.  The jury charge clearly listed a specific location ("bedroom," "master
bedroom," or "van") in bold font under each count in the jury charge.  These locations were not
vague, confusing, or otherwise unspecific. We presume that the jury heeded them and limited its
deliberations accordingly.  See Resendiz v. State, 112 S.W.3d 541, 546 (Tex. Crim. App. 2003)
(appellate courts presume jury follows instructions).
		Ates also argues that the jury charge should not have simply listed a location under
each count, but rather should have included a location as an element of each charged offense.  He
complains that the failure to include a location as an element of each offense led to the possibility
of a non-unanimous verdict. (7)  He argues, in other words, that location needed to be included as an
element of each offense to insure jury unanimity.  Location is not, however, a material element of
the offenses at issue.  See Tex. Penal Code §§ 21.11, 22.021(a)(1)(B).  Ates does not argue that the
jury charge left out any material elements of the charged offenses; rather, he argues that the jury
charge should have included additional elements in the form of locations and addresses.
		"Unanimity" simply means that "each and every juror agrees that the defendant
committed the same, single, specific criminal act."  Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim.
App. 2005).  The trial court chose to address Ates's unanimity concern by indicating the State's
election through a header under each count in the charge.  An "election" generally requires "some
action that excludes or limits the jury's consideration of an offense," such as a limiting instruction. 
Ex parte Goodbread, 967 S.W.2d 859, 861 n.2 (Tex. Crim. App. 1998) (emphasis added).  The
court's chosen method of indicating the State's election, along with an instruction that the jury had
to reach a unanimous verdict to find Ates guilty on any individual count, served to ensure
that the jurors agreed on a single specific act upon which they returned a verdict.  We overrule
Ates's second issue.

The Jury Charge's Definitions of "Intentionally" and "Knowingly"
		Ates argues that the jury charge erroneously defined the terms "intentionally" and
"knowingly" as they pertained to the sexual-assault counts.  The State concedes that the charge
erroneously defined "knowingly" but argues that this error is not grounds for reversal because
(1) Ates did not raise it at trial and (2) it did not cause egregious harm.  See Barrios, 283 S.W.3d at
350 (jury-charge error not raised at trial is not grounds for reversal unless it was fundamental and
caused egregious harm).
		The jury charge defined "intentionally" and "knowingly" as follows:  "A person acts
intentionally, or with intent, when it is his conscious objective or desire to engage in the conduct. 
A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware
that his conduct is reasonably certain to cause the result."  Sexual assault is a "conduct" offense.  See
Gonzales v. State, 304 S.W.3d 838, 847 (Tex. Crim. App. 2010).  Thus, while the jury charge's
definition of "intentionally" was adequate, the charge should have defined "knowingly" in terms of
conduct.  See Tex. Penal Code Ann. § 6.03(b) (West 2003) ("A person acts knowingly, or with
knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct
when he is aware of the nature of his conduct or that the circumstances exist.").  Its failure to do so
was error.  See Saldivar v. State, 783 S.W.2d 265, 268 (Tex. App.--Corpus Christi 1989, no pet.). 
But because Ates did not object at trial, we can reverse only if the erroneous definition represented
fundamental error and caused Ates egregious harm.  Barrios, 283 S.W.3d at 350. 
		We hold that it did not.  While knowledge was an element of the State's proof, Ates
did not contest it at trial.  Thus, he cannot have been harmed by the erroneous definition in the jury
charge.  See Saldivar, 783 S.W.2d at 268 ("[W]here no defense is presented which would directly
affect an assessment of mental culpability, there is no harm in submitting erroneous definitions of
'intentionally' and 'knowingly.'"); see also Jones v. State, 229 S.W.3d 489, 494 (Tex.
App.--Texarkana 2007, no pet.) ("[T]he intent of Jones in touching B.S.S., while it was a part of
the State's required proof, was not a contested issue and consequently Jones could not be
egregiously harmed by the definition of the intentional and knowing state of mind.").  We overrule
Ates's third issue.



Detective Gaslin's Testimony
		Ates argues the trial court erred by admitting Detective Gaslin's testimony that during
a pre-trial interview she found A.A. to be truthful.  Ates objected to this testimony as calling for
"speculation," and the court overruled his objection.  On appeal, Ates argues that Gaslin's testimony
was objectionable for different reasons, including that it constituted improper bolstering and usurped
the jury's prerogative to determine credibility.  Because Ates did not raise any of his appellate
arguments at trial, it appears that he has preserved nothing for our review.  See Tex. R. App.
P. 33.1(a); Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (legal basis of
complaint raised on appeal cannot vary from that raised at trial); Penry v. State, 903 S.W.2d 715, 763
(Tex. Crim. App. 1995).  Nevertheless, for the sake of completeness, we will entertain the arguments
he has raised at trial and on appeal.
		During trial, the following exchange occurred:

PROSECUTOR: During the time that you interviewed her, did you find [A.A.] to be
truthful?

GASLIN: Yes, I did.

DEFENSE COUNSEL: Objection, Your Honor.  I think this calls for speculation and
it's outside of her personal knowledge.  Ask that the answer be stricken from the
record and the jury instructed.

PROSECUTOR: Actually it is within her personal knowledge.  I'm asking her what
her opinion of the victim's truthfulness was as she was interviewing her.

DEFENSE COUNSEL: Calls for an opinion.  They're calling for speculation.

THE COURT: Overruled.

PROSECUTOR: Did you find [A.A.] to be truthful during that interview?

GASLIN: Yes, ma'am.


Ates's objection of "speculation" is without merit; Gaslin testified that she found A.A. truthful
during her interview, not that A.A. was objectively truthful.  In other words, Gaslin expressed her
personal opinion of A.A.'s truthfulness.  Doing so obviously did not require her to speculate about
matters beyond her personal knowledge.
		For the sake of argument, we will treat Ates's objection not as being about
"speculation" per se but rather about Gaslin commenting on another witness's truthfulness.  To the
extent that Ates's objection can be construed that way, it had merit; it is indeed improper for one
witness to comment on another witness's truthfulness.  See Yount v. State, 872 S.W.2d 706, 708
(Tex. Crim. App. 1993).  Thus, viewed in that light, we will consider whether the admission of
Gaslin's testimony warrants reversal.
		The improper admission of "truthfulness" testimony is non-constitutional error.  See
Wilson v. State, 90 S.W.3d 391, 393 (Tex. App.--Dallas 2002, no pet.).  Thus, we will not overturn
Ates's criminal conviction on the basis of Gaslin's testimony if, after examining the record as a
whole, we have fair assurance that the error did not influence the jury, or influenced the jury only
slightly.  Schutz v. State, 63 S.W.3d 442, 443 (Tex. Crim. App. 2001).  This means that we consider
everything in the record, including testimony and physical evidence, the nature of the evidence
supporting the verdict, and the character of the error and its relationship to other evidence.  Id.
		Having reviewed the record as a whole, we conclude that Gaslin's testimony does not
warrant reversal.  A.A., who was 19 at the time of trial, testified extensively and was cross-examined
extensively.  This means that the jury had ample opportunity to form its own opinion of A.A.'s
credibility before Gaslin took the stand.  It therefore seems highly unlikely that Gaslin's
objectionable testimony--which was exceedingly brief, consisting of a three-word answer to a single
question--significantly impacted the jury's opinion of A.A.'s credibility.  Indeed, Gaslin's testimony
merely stated the obvious; given that Gaslin took A.A.'s interview to be a basis for investigating
Ates, any rational jury would have inferred that Gaslin found A.A. truthful during the interview. 
Furthermore, in responding to Ates's "speculation" objection, the prosecutor stated in front of the
jury that she was asking Gaslin only "what her opinion of the victim's truthfulness was as she was
interviewing her" (emphasis added); the prosecutor highlighted, in other words, that she was not
asking Gaslin to comment on A.A.'s objective truthfulness or the truthfulness of A.A.'s trial
testimony.  This fact makes it even less likely that Gaslin's testimony affected the jury's opinion of
A.A.'s credibility as a trial witness.  For all these reasons, we hold that even if Ates preserved error
regarding the admission of Gaslin's testimony, that error was not sufficiently harmful to warrant
reversal.  We overrule Ates's fourth issue.

Xavier's Testimony
		Finally, Ates argues that the trial court erred by allowing Xavier to testify to events
he allegedly witnessed when he was approximately two years old (Xavier was 12 at the time of trial). 
Ates argues that because Xavier was so young when he allegedly witnessed the events, he was not
competent to testify about them later.  See Watson v. State, 596 S.W.2d 867, 870 (Tex. Crim. App.
1980) (in determining competency of witness, court must assess whether witness had capacity to
observe intelligently at time of events in question).  Ates did not object to Xavier's testimony on this
basis at trial, however, so, as he acknowledges, it will not serve as grounds for reversal unless it
constitutes fundamental error.  See Tex. R. Evid. 103(d).  
		We hold that admitting Xavier's testimony was not fundamental error.  Children
are competent to testify unless, "after being examined by the court, [they] appear not to
possess sufficient intellect to relate transactions with respect to which they are interrogated."  Id.
R. 601(a)(2).  There is no minimum age at which a child can be a competent witness.  Upton v. State,
894 S.W.2d 426, 429 (Tex. App.--Amarillo 1995, writ ref'd); Berotte v. State, 992 S.W.2d 13,
17-18 (Tex. App.--Houston [1st Dist.] 1997, no writ).  Having reviewed Xavier's testimony, it is
clear that the trial court did not abuse its discretion by treating Xavier as competent.  After taking
the oath and explaining what it meant, Xavier successfully answered a series of questions about his
age, his schooling, his interests, and Ates's identity.  He then successfully answered a series of
questions about the sexual assault he witnessed.  He coherently described what he had seen and used
dolls to demonstrate it to the jury.  He also underwent a cross-examination, and the answers he gave
were consistent.  Nothing in the record suggests, much less establishes, that Xavier was unable to
intelligently observe, process, or recall the abuse he witnessed at age two.
		Admitting Xavier's testimony was not fundamental error for a second reason:  the
testimony was not essential to Ates's conviction.  See Almanza v. State, 686 S.W.2d at 171-72 (error
is fundamental only if so egregious and harmful that it deprives defendant of right to fair trial). 
A.A.'s testimony was in and of itself sufficient to support a conviction.  Ates claims that Xavier
provided critical corroboration of A.A.'s testimony, but A.A.'s testimony required no corroboration. 
See Tex. Crim. Proc. Code art. 38.07(a), (b)(1).  Furthermore, the State did not ultimately elect to
seek a conviction on the basis of the episode that Xavier witnessed and testified about.  Thus, we
conclude that admitting Xavier's testimony was not fundamental error.  We overrule Ates's
fifth issue.

CONCLUSION
		For the reasons stated above, we affirm the trial court's judgment.

						__________________________________________
						David Puryear, Justice
Before Chief Justice Jones, Justices Puryear and Pemberton
Affirmed on Motion for Rehearing
Filed:   February 4, 2011
Do Not Publish

1.   At trial, A.A. could not remember whether Ates told her to take a bath or a shower.  Ates
later argued to the jury that this fact showed A.A.'s story was inconsistent.
2.   Ates's indictment and the jury charge both contained two sexual-assault counts arising
from bedroom incidents:  one based on oral sex and one based on anal penetration.
3.   The State did not ultimately elect to use this incident as a basis for seeking a conviction.
4.   Recall that Ates and A.A. lived together in two different houses.
5.   The court of criminal appeals recently did away with factual-sufficiency review on the basis
that it was "barely distinguishable" from legal-sufficiency review.  See Brooks v. State, No. PD-0210-09, 2010 Tex. Crim. App. LEXIS 1240, at *2 (Tex. Crim. App. Oct. 6, 2010).  Thus, in this
opinion, we do not recite separate review standards for legal and factual sufficiency even though
Ates makes arguments under both standards in his appellate brief.  
6.   Ates argues that he physically could not, as alleged, have stood in front of a six-year-old
while she was seated on a toilet and rubbed his penis on her vagina.
7.   We note that because Ates first urged his election request at the jury-charge stage, there
was no issue concerning whether the method of election gave him sufficient notice.  See
Phillips v. State, 193 S.W.3d 904, 910 (Tex. Crim. App. 2006) (one purpose of election is to "give
the defendant notice of the particular offense the State intends to rely upon for prosecution and afford
the defendant an opportunity to defend").  That is to say, Ates's election request came too late to
serve the purpose of ensuring that he had notice.  See id. at 912 (to preserve right to notice, defendant
must make election request at close of State's case-in-chief).  Thus, jury unanimity is the only
election-related concern we address.
