      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 WISSER, JUDGE PRESIDING



                              MEMORANDUM OPINION


                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 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




       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
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




       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
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.




       3
           The State did not ultimately elect to use this incident as a basis for seeking a conviction.

                                                   4
                  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

occurred4 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


       4
           Recall that Ates and A.A. lived together in two different houses.

                                                   5
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


       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
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 adequately

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



                                                   7
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




        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.

                                                   8
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 adequately 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

                                                 9
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 seems to complain that the jury charge should not have listed only a

location under each count, but rather should have included a location as an element of each charged

offense. He cites no authority to support this proposition, so we deem it waived. See Salazar v.

State, 38 S.W.3d 141, 147 (Tex. Crim. App. 2001); Tex. R. App. P. 38.1. 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




                                                 10
(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



                                                  11
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.



                                                 12
       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.

                                                 13
               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.

                                                  14
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



                                                  15
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

Filed:   December 10, 2010

Do Not Publish




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