
NO. 07-06-0300-CR



IN THE COURT OF APPEALS



FOR THE SEVENTH DISTRICT OF TEXAS



AT AMARILLO



PANEL C



OCTOBER 19, 2007



______________________________





JAMES McCANN, APPELLANT



V.



THE STATE OF TEXAS, APPELLEE





_________________________________



FROM THE 187
th
 DISTRICT COURT OF BEXAR COUNTY;



NO. 2004CR4006; HONORABLE PAT PRIEST, JUDGE



_______________________________



Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant, James McCann, was convicted by a jury of four counts of sexual assault of a child and three counts of indecency with a child.  As to each offense the punishment was assessed at twenty years confinement and a $5,000 fine.  The court denied the State’s motion to stack and ordered that the sentences be served concurrently.  Appellant presents three issues challenging his convictions: (1) the evidence is factually insufficient to support the jury’s verdict on all seven counts; (2) the trial court erred in failing to instruct the jury in terms that made the State’s election binding on it as to the facts alleged to support each count of the indictment; and (3) the trial court erred in failing to instruct the jury so as to insure that each conviction was based only on specific alleged conduct, in violation of the United States Constitution.  We affirm.

Factual Background

Appellant was charged with four counts of sexual assault and three counts of indecency with a child.  Appellant’s biological daughter, J.M., was the alleged victim in each count.  Although the indictment alleged that each offense occurred “on or about” August 14, 2002, the State’s theory was that the offenses occurred over a period of time and in different locations in Bexar County, Texas.

In 1994, when J.M. was approximately seven years old, Appellant, J.M., her three brothers, and her mother moved from Florida to Texas.  For approximately five years, the family resided in a small two bedroom house located at 119 Gardina in San Antonio.  Thereafter, they resided at numerous addresses, including a short stay at a motel where all six family members lived in one room. 

In August 2002, while Appellant and Mrs. McCann were separated, J.M. took the opportunity to outcry to her mother that Appellant had been sexually abusing her for several years.  The allegations were not reported to the police and shortly thereafter Appellant and Mrs. McCann reconciled.  

In 2003, while attending a church youth conference, J.M. confided to a friend that she had been sexually abused by Appellant.  The friend persuaded her to tell their youth minister who, unbeknownst to J.M., reported her allegations of sexual abuse to Child Protective Services.

  On July 10, 2003, Caroline Briones, a forensic interviewer for CPS, received a referral about J.M.’s allegations.  Briones interviewed J.M. on September 4, 2003, at her high school, and an audiotape of the interview was made.  Based on that interview, Briones contacted Mrs. McCann and law enforcement.  

In mid-September 2003, believing J.M. to be suicidal, her parents took her to a psychiatric facility for evaluation.  Later that month, Mrs. McCann voluntarily committed J.M. to Boysville, a youth facility.  In December 2003, while at Boysville, J.M. began weekly therapy.  On January 8, 2004, approximately one and one-half years after the last incident of abuse, J.M. had a medical examination.  The medical examiner, Dr. Nancy Kellogg, gathered information about J.M.’s medical history and asked behavioral and emotional questions.  Dr. Kellogg concluded that despite the fact that J.M.’s physical exam did not provide any evidence of sexual assault, her diagnosis was that she had been sexually abused. 

 Detective Paul Stoeckle was assigned to investigate J.M.’s allegations and Dr. Kellogg’s medical report was forwarded to him.  Stoeckle interviewed both J.M. and Mrs. McCann.  On June 2, 2004, an indictment was filed and a warrant was issued.  On October 20, 2004, Appellant was arrested in Florida.  

Issue One - Factual Sufficiency

By his first issue, Appellant maintains the evidence is factually insufficient to support his conviction as to each offense.  We disagree.  
When conducting a factual sufficiency review, we examine all the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  
Zuniga v. State
, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004), 
overruled in part by
 
Watson v. State
, 204 S.W.3d 404, 415-17 (Tex.Crim.App. 2006).  We cannot reverse a conviction unless we find some objective basis in the record that demonstrates that the great weight and preponderance of the evidence contradicts the jury’s verdict.  
Watson
, 204 S.W.3d at 417.  In other words, we cannot conclude that Appellant’s conviction is “clearly wrong” or “manifestly unjust” simply because we disagree with the jury’s verdict
.  Id.
; 
Cain v. State
, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).  

The jury is the exclusive judge of the facts.  Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007) & 38.04 (Vernon 1979).  As a reviewing court, we must always remain cognizant of the jury’s role and unique position in evaluating credibility and demeanor of witnesses and giving weight to contradictory testimonial evidence.  
Johnson v. State
, 23 S.W.3d 1, 8-9 (Tex.Crim.App. 2000).  
Unless the record clearly demonstrates a different result is appropriate, we must defer to the jury’s determination.  
Id.
 at 8
.

The gist of Appellant’s factual sufficiency argument is that J.M.’s allegations were unreliable and uncorroborated by any independent evidence.  Based on that premise, he asserts the jury’s verdict is objectively against the great weight and preponderance of the evidence.  As directed by the Texas Court of Criminal Appeals, we must consider the most important evidence that Appellant claims undermines the jury’s verdict.  
Sims v. State
, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). 

The defense portrayed J.M. as an intelligent, manipulative, vengeful, liar who fabricated the allegations against Appellant because he was a strict disciplinarian.  Much was made about an incident involving J.M. while she was in fifth grade.  J.M. testified that her teacher caught her passing a note, and because she was upset she left school without notifying anyone.  When she was eventually located, J.M. claimed to have been abducted from the school bathroom by a man at gunpoint.  During her testimony at trial, J.M. admitted fabricating the abduction story. 

  	The defense also introduced a handwritten note that was alleged to have been written by J.M.  The note recites that when J.M. was thirteen, she was given a “roofie” and blacked out.  The note further provides that while she was under the influence of this drug she was gang raped, and that as a result, she became pregnant and eventually went to Mexico for an abortion.  J.M. testified that the note looked like it was in her handwriting but she could not recall writing the note, nor did she remember ever discussing it with her therapist.   J.M. also denied that the events described in the note ever happened. 

Further evidence showed that J.M. and her family always lived in small residences or apartments.  J.M. testified that at times she had her own bedroom, while the defense presented evidence that all four siblings shared one bedroom.  The house at 119 Gardina, where the family resided for almost five years, was a small two-bedroom residence that Appellant described as a “match box.”  J.M. testified that she had her own bedroom and that Appellant would come in at night and sexually abuse her.  According to Appellant, Mrs. McCann, and the two brothers who testified, all four siblings slept in one bedroom and the younger brother slept on the floor near J.M.  The defense also offered testimony that it was unlikely Appellant committed the alleged offenses because two of J.M.’s brothers were light sleepers who would have heard Appellant on the creaky floors if he had come into their bedroom at night. 

Several witnesses testified that all four siblings did everything together and that Appellant never asked his sons to play outside or go to the park so he could find opportunities to be alone with J.M.  J.M., on the other hand, testified that on several occasions, Appellant asked her brothers to go to the park or go play outside so he could be alone with her.

J.M. described the abuse as beginning when she was approximately seven and lasting until she was approximately fourteen.  She testified that while living at the residence on Gardina, Appellant came into her room holding a beer bottle, unzipped his pants, pulled out his penis, and asked her to “lick his balls.”  She recalled putting her mouth on it.  She also testified that while living at the same address, he had anal sex with her, which caused her pain and bleeding.  She said that Appellant applied Vaseline on his penis before anal penetration.  According to J.M., on one occasion, Appellant had her bring coffee into his bedroom and asked her to get naked.  He then touched her everywhere--breasts, butt, and vagina.   She continued in her testimony that Appellant had her touch his penis and perform oral sex on him and that while still residing at the Gardina address, and that Appellant put his mouth on her vagina while they were watching a movie.  

J.M. testified that Appellant would ejaculate into a towel and sometimes on her legs, which she would wipe off with a towel.  According to J.M., Appellant told her he could not ejaculate inside her because she might become pregnant.  Mrs. McCann testified that she did all the laundry for the family and never noticed any stained towels or any bloody underwear.  Neither did she notice any tissues with blood or body fluids.  

According to J.M.’s testimony, Appellant groomed her to believe he loved her and that the incidents were their secret.  J.M. also testified that Appellant told her that ancient civilizations engaged in such conduct and that society had turned it into a “bad thing” and that if she revealed their relationship, the family would be separated and her parents would go to jail.

J.M. further testified that when she was thirteen and the family was living at Sage Crossing Apartments, Appellant forced her to have vaginal intercourse.  She testified that after the first incident of intercourse, future encounters included vaginal intercourse.  In 2001, the family moved from Sage Crossing Apartments to a motel for some months.  She testified that Appellant touched her breasts and “private parts” with his fingers.  Vaginal and anal sex also occurred while living at the motel.  The family then moved to a house on Alametos, where the last incident occurred in mid-August 2002.

Appellant testified that J.M. was intelligent, head strong, and demanding.  He emphatically denied J.M.’s allegations.  He explained that his busy work schedule of twelve to eighteen hour days did not leave him much free time.  According to Appellant, while he and Mrs. McCann were separated, J.M. had no limitations on privileges and was “boy crazy.”  Appellant also testified that subsequent to the allegations of sexual abuse having been made, J.M. apologized to him and said she had acted out of anger.

Detective Stoeckle testified that except for J.M.’s allegations, he found no other independent evidence of sexual abuse.  Dr. Kellogg testified that her diagnosis was that J.M. had been sexually abused.  During Dr. Kellogg’s cross-examination, the defense attempted to impeach her with a prior case in which she had testified to one theory and later found out her testimony was inaccurate.  The defense then proceeded with a line of questioning indicating that a computer literate person would have been able to obtain information about the symptoms of sexual abuse on the internet.  

J.M. was recalled as a witness and testified that Mrs. McCann began working full time when she was in second or third grade.  She further testified that Appellant went through periods of unemployment, which caused financial hardships.  She also claimed that when she and her brothers were younger, Appellant would spend more time at home during the summer months because the children did not have a babysitter.  Mrs. McCann was also recalled and, contrary to J.M.’s testimony, testified that Appellant did not have periods of unemployment.  In response to defense counsel’s questions, she denied that Appellant spent time at home just “doing nothing.” 

During her initial testimony, Mrs. McCann admitted crying and holding her head in her hands when she first learned of J.M.’s allegations; however, she told the CPS interviewer that she did not believe the allegations.  Briones testified that Mrs. McCann believed she had failed her daughter when she heard the audiotape of J.M.’s allegations. 

As outlined hereinabove, this record is fraught with contradictory testimony.  We must, however, give great deference to the jury’s resolution of those conflicts.  As the exclusive judge of the facts and credibility of the witnesses, the jury was free to believe or disbelieve all or any part of a witness’s testimony.  
Goodman v. State
, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001).
  
The jury performed its task of weighing the evidence, resolving conflicts in the testimony, and thereafter chose to give credibility to J.M.’s allegations and disbelieve the witnesses for the defense.  
Given the record before us, we conclude the jury was rationally justified in finding guilt beyond a reasonable doubt
.  
We find no objective basis in the record that demonstrates that the great weight and preponderance of the evidence contradicts the jury’s verdict
.  Issue one is overruled.

Issues Two and Three - State’s Election 

By his second and third issues, Appellant asserts he was egregiously harmed by the trial court’s failure to charge the jury in terms that made the State’s election binding on it as to the facts alleged to support each count of the indictment and in such a way that each conviction was based upon specific illegal conduct.  We disagree.  

When the State charges multiple offenses in a single indictment, it is required by statute to set out each offense in a separate “count.”  
See
 Tex. Code Crim. Proc. Ann. art. 21.24(a) (Vernon 1989).  
See also Martinez v. State
, 225 S.W.3d 550, 554 (Tex.Crim.App. 2007).  When the State has offered multiple instances of conduct that might conform to a single count, the State may be required to make an election as to which particular evidentiary facts it is relying upon to support a conviction as to each count alleged in the indictment.  
Martinez, 
225 S.W.3d
 
at 555.  The reasons for requiring the State to make an election are:

(1)	to protect the accused from the introduction of extraneous offenses;

(2)	to minimize the risk that the jury might choose to convict, not because one or more crimes were proved beyond a reasonable doubt, but because all of them together convinced the jury the defendant was guilty;

(3)	to ensure unanimous verdicts, that is, all of the jurors agreeing that one specific incident, which constituted the offense charged in the indictment, occurred; and

(4)	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.



Dixon v. State
, 201 S.W.3d 731, 733 (Tex.Crim.App. 2006).

 

In this case the seven count indictment provides, in relevant part, as follows:



COUNT I

JAMES MCCANN . . . did then and there intentionally and knowingly cause the SEXUAL ORGAN of [J.M.] . . . to CONTACT the SEXUAL ORGAN of THE SAID DEFENDANT.

COUNT II

JAMES MCCANN . . . did then and there intentionally and knowingly cause the ANUS of [J.M.] to CONTACT the SEXUAL ORGAN of THE SAID DEFENDANT.

COUNT III 

JAMES MCCANN . . . did then and there intentionally and knowingly cause the MOUTH of [J.M.] to CONTACT the SEXUAL ORGAN of THE SAID DEFENDANT.

COUNT IV

JAMES MCCANN . . . did then and there intentionally and knowingly cause the SEXUAL ORGAN of [J.M.] to CONTACT the MOUTH of THE SAID DEFENDANT.

COUNT V

JAMES MCCANN . . . did then and there intentionally and knowingly engage in sexual contact with [J.M.] . . . by then and there TOUCHING PART OF THE GENITALS of [J.M.] with the intent to arouse and gratify the sexual desire of any person.

COUNT VI

JAMES MCCANN . . . did then and there intentionally and knowingly engage in sexual contact with [J.M.] . . . by then and there TOUCHING THE ANUS of [J.M.] with the intent to arouse and gratify the sexual desire of any person.

COUNT VII

JAMES MCCANN . . . did then and there intentionally and knowingly engage in sexual contact with [J.M.] . . . by then and there causing [J.M.] to touch PART OF THE GENITALS OF THE SAID DEFENDANT, with the intent to arouse and gratify the sexual desire of any person . . . .



Each count alleges that the offense occurred “on or about” August 14, 2002.  Appellant contends that the application paragraphs of the jury charge, which simply mirrored the indictment, did not provide the jury with any particulars to identify the specific incidents.  Relying on 
Dixon v. State
, 171 S.W.3d 432, 434 n.1 (Tex.App.–Houston [14th Dist.] 2005), 
rev’d on other grounds
, 201 S.W.3d 731 (Tex.Crim.App. 2006), Appellant maintains that an election is ineffective if it is not incorporated into the jury charge. 

In this case the trial court required the State to make an election outside the jury’s presence.  The State went over each count and explained the evidence it intended to rely upon to support a conviction as to each count.  During the charge conference, defense counsel expressed concern about tying specific evidence to the individual counts, to which the trial court explained:

The Court:				Well, the State has made its election, and under this Charge, the way I read it the State is the one that has the burden of telling them what we are talking about on each of these, not you.



[Defense Counsel]:	Okay.  Yeah, that is a good explanation.

The Court:   		You like that explanation?

[Defense Counsel]:	I love it.

The Court: 		Is the State okay with the Charge?

[Prosecutor]: 		Yes, Your Honor.

The Court: 		Is the defense okay with the Charge?

[Defense counsel]: 	Yes.



Thereafter, the trial court instructed the jury as follows:  





The State has identified the specific instances on which it is relying to substantiate the allegations in the Indictment. . . . [Y]ou must focus upon the act or acts identified by the State as allegedly supporting each such count, and you may find the defendant guilty of any particular count only if you unanimously agree beyond a reasonable doubt that the act or acts relied upon by the State did occur, and that those acts prove the offense alleged beyond a reasonable doubt. 



Appellant acknowledges that trial counsel did not object to the charge.  Thus, in order to sustain a reversal, we must find that any error was “egregious.”  
Almanza v. State
, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984).
  
Almanza
 defines egregious harm as errors which affect "the very basis of the case," deprive the defendant of a "valuable right," or "vitally affect a defensive theory."  
Id.
 at 172 (citations omitted); 
Hutch v. State
, 922 S.W.2d 166, 172 (Tex.Crim.App. 1996).  The degree of harm may be determined in light of the entire jury charge, the state of the evidence, including the contested issues and the weight of the probative evidence, the arguments of counsel, and any other relevant information in the record. 
Almanza
, 686 S.W.2d at 171.

During closing arguments, as directed by the trial court, the State specified the following evidence it was relying on for each of the seven counts: 

∙	Count I:  J.M. testified that when she was thirteen, Appellant forced vaginal intercourse on her when the family was living at Sage Crossing Apartments.  The act occurred on the carpet by the balcony.

∙	Count II: J.M. testified that while living at 119 Gardina, Appellant applied Vaseline to his penis and penetrated her anus. 

∙	Count III: J.M. testified that her first memory of the assaults was when she was seven and was living at 119 Gardina.  Appellant had her “lick his balls” and her mouth made contact with his penis.

∙	Count IV: J.M. testified that Appellant performed oral sex on her while they were watching the movie “Cruel Intentions.”

∙	Count V: J.M. testified that while the family was living at a motel, Appellant sent her brothers outside and touched her breasts and genitals with his fingers.

∙	Count VI: J.M. testified that while living at 119 Gardina, Appellant touched her anus when she brought coffee into his bedroom.

∙	Count VII: J.M. testified that on the same occasion as in Count VI, she touched Appellant’s genitals.



We first address Appellant’s concern that while all seven counts allege the same date of August 14, 2002, the State’s election of evidence clearly contemplated different dates.  The State is not required to allege a specific date in an indictment.  
When an indictment alleges that a crime occurred “on or about” a particular date, the State can rely upon evidence that an offense occurred on a date other than the one specifically alleged in the indictment, so long as the date is anterior to the presentment of the indictment and within the statutory limitations period, and the offense relied upon otherwise meets the description of the charged offense.  
Yzaguirre v. State
, 957 S.W.2d 38, 39 (Tex.Crim.App. 1997), 
citing
 
Sledge
 
v. State
, 953 S.W.2d 253, 256 (Tex.Crim.App. 1997).  

In this case, J.M. testified that the last incident of abuse happened in August 2002.  The indictment was presented to the Grand Jury on June 2, 2004.
(footnote: 1)  The statute of limitations for both aggravated sexual assault and indecency with a child is ten years from the eighteenth birthday of the victim.  Tex. Code Crim. Proc. Ann. art. 12.01(5) (Vernon Supp. 2006).  Therefore, there is no error in the State alleging that all counts occurred “on or about August 14, 2002.” 

Appellant further complains that the charge of the court did not contain an application paragraph tracking the State’s election.  Appellant does not provide any persuasive authority for his contention that the trial court is required to incorporate the State’s election into the jury charge.  Appellant’s reliance upon 
Dixon
 is misplaced.  In 
Dixon
 the trial court erred by not requiring the State to make an election, whereas, here the trial court did require the State to make an election.  Appellant’s complaint is that the trial court did not incorporate that election into the application paragraph of the court’s charge.  Assuming the trial court was required to do so, we conclude under the facts of the this case 
and in light of the entire jury charge, the state of the evidence, including the contested issues and the weight of the probative evidence, and the arguments of counsel, 
that Appellant did not suffer egregious harm.  The State made its election and then pursuant to the trial court’s request, in their closing arguments specifically outlined to the jury the evidence it was relying on as to each count.  Under these circumstances, we cannot say that the error, if any, caused Appellant any egregious harm.  Issues two and three are overruled. 

 	Consequently, the trial court’s judgment is affirmed.



Patrick A. Pirtle

      Justice





Do not publish. 

FOOTNOTES
1:The date portion of the indictment was left blank; however, upon the State’s request, the trial court took judicial notice of the date of the indictment as being June 2, 2004.


