                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00611-CR


DAMIEN GUERRERO                                                    APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
                   TRIAL COURT NO. 1263552D

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                        MEMORANDUM OPINION1

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      A jury convicted Appellant Damien Guerrero of the offenses of aggravated

sexual assault of a child and indecency with a child by contact. The trial court

assessed concurrent seven-year terms of imprisonment as punishment. In three

issues, Appellant asserts the evidence is insufficient, the trial court erred in

admitting text messages between him and the Complainant, and the jury


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      See Tex. R. App. P. 47.4.
selection was unauthorized because there was no order referring the magistrate

to preside over the voir dire. We affirm.

                                    The Indictment

       In count one of the indictment, the State alleged that Appellant on or about

October 11, 2011, in Tarrant County, Texas, intentionally or knowingly caused

the female sexual organ of Complainant, a child younger than fourteen years of

age,   to   contact   the   penis    of   Appellant.     Tex.   Penal   Code   Ann.

§ 22.021(a)(1)(B)(iii), (2)(B) (West Supp. 2014). The State alleged the offense of

aggravated sexual assault of a child, which is a first degree felony.           Id.

§ 22.021(e). First degree felonies are punishable by imprisonment for life or for

any term of not more than ninety-nine years or less than five years and a fine not

to exceed $10,000. Id. § 12.32 (West 2011).

       The State waived count two.

       In count three, the State alleged that Appellant on or about October 11,

2011, in Tarrant County, Texas, intentionally, with the intent to arouse or gratify

his sexual desire, engaged in sexual contact by touching the breast of

Complainant, a child younger than seventeen years. Id. § 21.11(a)(1) (West

2011). The State alleged the offense of indecency with a child by contact, which

is a second degree felony.          Id. § 22.11(d).    Second degree felonies are

punishable by imprisonment for any term of not more than twenty years or less

than two years and a fine not to exceed $10,000. Id. § 12.33 (West 2011).




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                                   Evidence

      On the morning of October 11, 2011, Appellant and Complainant, who was

thirteen, exchanged text messages about Complainant skipping school to

perform fellatio on Appellant.     Toting her Dora the Explorer backpack,

Complainant left her middle school campus during lunch, got into Appellant’s

truck, and went to Appellant’s apartment, where she and Appellant had sexual

intercourse.   The next day, when the school’s police resource officer and

Complainant’s mother confronted Complainant about skipping school the

previous day, Complainant said she had left school to have sex with a male

whose name she did not know.

      A school resource officer took Complainant to Cook Children’s Hospital for

a sexual assault examination.        When the sexual assault nurse took

Complainant’s history, Complainant identified Appellant as the person with whom

she had sex and, further, indicated the sex was consensual.        Complainant

reported penis-to-vagina contact as well as penetration.      Complainant also

admitted being fondled, which meant being touched with the hand on the breast

and genitalia under the clothes.   DNA testing later confirmed Appellant had

engaged in vaginal intercourse with Complainant.

      Complainant testified she was born in December 1997 and was thirteen on

October 11, 2011. About a month before the offense, she saw Appellant at a tire

store, thought he was attractive, approached him, and asked him for his number

under the pretext that it was her sister who wanted to meet him. Complainant


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said she lied to Appellant about her age and told him she was fifteen.

Complainant said she did not know how old Appellant was. She did not see

Appellant again until October 11, 2011, but had been communicating with him by

texting.

      Regarding the offense, Complainant testified at trial that Appellant touched

her breasts with his hands. She also said that Appellant used his hands and

penis to touch her vagina and that she and Appellant eventually had penetrative

sexual intercourse. Complainant said initially she wanted to, then she did not

want to, but when she told Appellant to stop, he did not.

      Appellant was nineteen at the time of the offense.

                           Sufficiency of the Evidence

      In his first issue, Appellant asserts the evidence is insufficient because the

testimony concerning the DNA evidence did not conclusively link Appellant to the

vaginal swab. Appellant complains that the vaginal swabs were never identified.

We disagree.

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768

(Tex. Crim. App. 2013).     The issue on appeal is not whether we as a court

believe the State’s evidence or believe the defense’s evidence “outweighs” the


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State’s evidence.   Holloway v. State, 695 S.W.2d 112, 115 (Tex. App.—Fort

Worth 1985), aff’d, 751 S.W.2d 866 (Tex. Crim. App. 1988). If there is evidence

that establishes guilt beyond a reasonable doubt, and if the trier of fact believes

that evidence, we are not in a position to reverse the judgment on sufficiency of

the evidence grounds. Id.

      The sexual assault nurse said she took five swabs off of Complainant’s

body for DNA. The five swabs were admitted as State’s Exhibits 24B, 24C, 24D,

24E, and 24F. The forensic DNA analyst said she recognized her initials on the

buccal swabs and the vaginal swabs. Those were identified as State’s Exhibits

24B and 24C. The buccal swab was specifically identified as State’s Exhibit 24B.

By the process of elimination, the vaginal swabs were State’s Exhibit 24C. The

forensic DNA analyst also said she discovered the presence of sperm on the

vaginal swab, extracted the DNA from the sperm cells, compared the DNA to a

known sample of Appellant’s DNA, and concluded Appellant could not be

excluded as a contributor. She said the odds of someone other than Appellant

being the contributor were “one out of every approximately 5.7 quintillion

individuals of Caucasian, African-American[,] and Southwestern Hispanic

descent.”

      Appellant also complains that the forensic DNA analyst testified only

generically regarding DNA testing and theory. The forensic DNA analyst said

that the science behind DNA was generally accepted within the scientific

community and that DNA was used for identification on a daily basis. Regarding


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reliability, she said her laboratory was certified by the ISO, which she described

as an entity having standards that met and exceeded the national standards.

She also explained that each time she ran a DNA test, her lab required standards

and safeguards that insured the machines used in testing were working correctly.

      Appellant cross-examined the forensic DNA analyst at trial. Appellant did

not challenge the validity of the DNA testing and theory. Instead, Appellant got

the forensic DNA analyst to concede that it was possible, although unlikely, that

the minor contributor to the DNA sample was someone other than Complainant.

The analyst said it was possible but unlikely because the minor contributor’s data

matched Complainant’s “so perfectly.”

      Standing alone, Complainant’s testimony provided legally sufficient

evidence to support the convictions. Torres v. State, 424 S.W.3d 245, 253 (Tex.

App.—Houston [14th Dist.] 2014, pet. ref’d); Connell v. State, 233 S.W.3d 460,

466 (Tex. App.—Fort Worth 2007, no pet.). It is true Complainant admitted lying

about many other things. However, regarding the offenses themselves, the text

messages and DNA evidence lent considerable credibility to her testimony.

      A child under fourteen cannot legally consent to sex. May v. State, 919

S.W.2d 422, 424 (Tex. Crim. App. 1996). Neither offense requires proof that the

complainant did not consent.      Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii)

(aggravated sexual assault); Id. § 21.11(a)(1) (indecency with a child). Even if a

child complainant consents in fact, that consent is not given any legal effect and

provides no defense. May, 919 S.W.2d at 424.


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      Viewing the evidence in the light most favorable to the verdict, we hold that

any rational trier of fact could have found the essential elements of the offenses

beyond a reasonable doubt. See Winfrey, 393 S.W.3d at 768. We overrule

Appellant’s first issue.

  The Admission of Testimony Regarding Complainant’s Cell Phone Use

      In his second issue, Appellant complains about the testimony of Reginald

Sparks, a forensic computer examiner. Detective David Bell asked Sparks to

extract data from Complainant’s cell phone on October 13, 2011. Sparks thought

Detective Bell asked for all the text messages between Appellant and

Complainant. Sparks did not recall Detective Bell’s specific request, but Sparks

said if he had been asked for messages before October 11, he would have

provided them. Sparks speculated one explanation for the exhibit not including

texts before October 11 was that he requested and obtained permission to

restrict the scope of the search based upon the volume of text messages and

upon the fact that, on Complainant’s particular model, he had to manually

transcribe the texts, which was tedious and time consuming.           Sparks said

another possible explanation was that Complainant’s model stored only a certain

number of messages. Appellant objected on the basis of optional completeness;

he argued that providing just the text messages from October 11 would provide

an incomplete and misleading picture to the jury.        Complainant’s testimony

showed there were text messages before October 11, 2011.




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      The State responds that Appellant does not complain on appeal about the

admission of State’s Exhibit 28, which provides the text messages between

Appellant and Complainant on October 11, 2011.                The State contends

Appellant’s objection at trial was to State’s Exhibit 28 and was not to Sparks’s

testimony.    The State concludes that because Appellant did not object to

Sparks’s testimony, Appellant’s complaint is not preserved. See Tex. R. App. P.

33.1(a)(1); Sanchez v. State, 418 S.W.3d 302, 307–08 (Tex. App.—Fort Worth

2013, pet. ref’d).

      The State is correct that at trial Appellant objected to State’s Exhibit 28 and

not to Sparks’s testimony whereas, on appeal, Appellant complains about

Sparks’s testimony and not about State’s Exhibit 28. Appellant argues: “Sparks

testified to and authenticated his verbatim transcript of some seventy-four text

messages between the two cell phones, seventy of which occurred within a four

hour period on October 11, 2011, between 8:26 a.m. and 12:30 p.m.” However,

we are to construe briefs liberally. See Tex. R. App. P. 38.1(f), 38.9. Appellant’s

argument on appeal appears to be that had the trial court not admitted State’s

Exhibit 28, Sparks would have had nothing about which to testify. Construing

Appellant’s brief liberally, his complaint is about the admission of State’s Exhibit

28 based upon the rule of optional completeness.

      The rule of optional completeness provides:




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      When part of an act, declaration, conversation, writing or recorded
      statement is given in evidence by one party, the whole on the same
      subject may be inquired into by the other, and any other act,
      declaration, writing or recorded statement which is necessary to
      make it fully understood or to explain the same may also be given in
      evidence, as when a letter is read, all letters on the same subject
      between the same parties may be given. “Writing or recorded
      statement” includes depositions.

Tex. R. Evid. 107.

      Optional completeness provides a mechanism whereby the objecting party

may “complete” evidence that has been offered and admitted into evidence by

the adverse party for the purpose of correcting any potentially misleading

impression.   See Mendiola v. State, 61 S.W.3d 541, 545 (Tex. App.—San

Antonio 2001, no pet.). Rule 107 is not a rule of exclusion but is, instead, a rule

of admissibility. Lomax v. State, 16 S.W.3d 448, 450 (Tex. App.—Waco 2000,

no pet.). Additionally, the rule of optional completeness requires the omitted

portions be “on the same subject” and “necessary” to make the earlier admitted

evidence fully understandable. Sauceda v. State, 129 S.W.3d 116, 123 (Tex.

Crim. App. 2004); Mendiola, 61 S.W.3d at 545.         Even assuming there were

earlier texts between Appellant and Complainant on the same subject, Appellant

has not shown they were necessary to make the texts of October 11, 2011, fully

understandable.

      Citing Brady v. Maryland, Appellant also argues the State was required to

provide evidence favorable to the accused. 373 U.S. 83, 83 S. Ct. 1194 (1963).




                                        9
Appellant did not object at trial on the basis of a Brady violation. Appellant has

not preserved that argument. Tex. R. App. P. 33.1(a)(1).

      We overrule Appellant’s second issue.

 The Absence of an Order of Referral Permitting the Magistrate to Conduct
                                Voir Dire

      In his third issue, Appellant complains that a magistrate presided over voir

dire, but the record does not contain an order of referral by the elected judge.

Appellant contends that the judge had to sign an order of referral specifying the

magistrate’s duties.   Appellant contends that without an order of referral, the

magistrate had no authority to act. Ex parte DeLeon, No. 05-11-00594-CR, 2011

WL 3690302, at *2 (Tex. App.—Dallas Aug. 24, 2011, no pet.) (not designated

for publication) (relying on Ex parte Pardun, 727 S.W.2d 131, 132–33 (Tex.

App.—Dallas 1987, no pet.) (per curiam)2).

      The State responds that Appellant did not object to the magistrate and that

this court has previously ruled that in order to challenge a trial court’s referral of

voir dire to a magistrate, the appellant must have preserved error in the trial

court. See Nash v. State, 123 S.W.3d 534, 536–37 (Tex. App.—Fort Worth

2003, pet. ref’d) (citing Lemasurier v. State, 91 S.W.3d 897, 900 (Tex. App.—Fort

Worth 2002, pet. ref’d); McKinney v. State, 880 S.W.2d 868, 870 (Tex. App.—

Fort Worth 1994, pet. ref’d)); Hoag v. State, 959 S.W.2d 311, 313 (Tex. App.—

      2
       In Pardun, the magistrate exceeded the scope of the referral order.
Pardun, 727 S.W.2d at 132–33. The opinion never addresses a failure to
preserve error or the implications of a failure to preserve error. Id.


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Fort Worth 1997, no pet.) (citing Davis v. State, 956 S.W.2d 555, 557, 560 (Tex.

Crim. App. 1997)).       The State concedes DeLeon holds in Appellant’s favor.

However, the State correctly asserts DeLeon is not binding authority upon this

court.    See Shook v. State, 156 Tex. Crim. 515, 517, 244 S.W.2d 220, 221

(1951) (op. on reh’g) (stating that courts are not bound by the decisions of other

courts of equal jurisdiction). The State also points out that DeLeon is not a

published case. Unpublished criminal opinions have no precedential value. Tex.

R. App. P. 47.7(a). The State concludes, therefore, that this court should follow

its own earlier authority and overrule Appellant’s third ground for failure to

preserve error. Tex. R. App. P. 33.1(a)(1); Nash, 123 S.W.3d at 537. Because

DeLeon has no precedential value as an unpublished opinion, and because our

own Nash opinion is controlling on this issue, we agree with the State.

         We overrule Appellant’s third issue.

                                     Conclusion

         Having overruled Appellant’s three issues, we affirm the trial court’s

judgment.


                                                  /s/ Anne Gardner
                                                  ANNE GARDNER
                                                  JUSTICE

PANEL: DAUPHINOT, GARDNER and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 26, 2015


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