                             NUMBER 13-10-00571-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

RUBEN HERRERA,                                                               Appellant,

                                            v.

THE STATE OF TEXAS,                                                          Appellee.


                    On appeal from the 214th District Court
                          of Nueces County, Texas.


                        MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Benavides and Vela
             Memorandum Opinion by Justice Benavides
       Appellant Ruben Herrera challenges his jury conviction for one count of

aggravated sexual assault of a child, a first-degree felony.   See TEX. PENAL CODE ANN. §

22.021 (West 2011). He was sentenced to forty years’ imprisonment in the Institutional

Division of the Texas Department of Criminal Justice.     By two issues, Herrera contends
that:   (1) the evidence was legally and factually insufficient to support the verdict; and

(2) the trial court committed error when it refused to allow the defense to reopen the

evidence, make an offer of proof, or grant a mistrial prior to the jury returning a verdict.

We affirm.

                                  I.     BACKGROUND

        In 1999, appellant and his twin brother, Raymond, were downstairs neighbors of

the victim (S.H.) and her family at an apartment complex in Corpus Christi, Texas.

During that time, Raymond began dating S.H.’s mother (M.B.), eventually moved into her

apartment, and later into a house together. Several years later, Raymond and M.B.

ended their relationship, but subsequently reconciled.        Once back together, M.B.

informed her children that Raymond would return to live with them, but M.B.’s other

daughter (R.B.) told M.B. that Raymond had previously abused her. M.B. testified that

she was angry and hurt and spoke to her other children to investigate whether they had

similar claims. S.H. revealed to her mother that appellant had abused her in the past.

M.B. reported these allegations to the Corpus Christi Police Department, who initiated an

investigation.   Following these outcries, Raymond was charged and pleaded guilty to

sexual assault of S.H., R.B., and their other sister, M.B.; pursuant to a plea bargain, he

was sentenced to twenty-five years’ imprisonment.

        In 2010, appellant, Ruben Herrera, was later indicted and pleaded not guilty to

three counts of aggravated sexual assault of a child stemming from an outcry made by

S.H., who alleged three separate episodes of abuse by appellant dating back to August

1999.    See TEX. PENAL CODE ANN. § 22.021.


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       S.H., who was nineteen years-old at the time of trial, testified that all three

episodes took place when the two were alone in appellant’s downstairs apartment, when

she was eight-years old.      The first incident happened when S.H. was helping appellant

clean his apartment, and he took her to the couch in the living room.    S.H. testified that

appellant proceeded to rub her leg, undo her pants, and perform oral sex on her. S.H.

could not recall details of the second episode, but testified that the third time, appellant

rubbed her private area over her clothes with his fingers as she washed dishes. S.H.

further testified that she could identify the appellant apart from his identical twin

Raymond because the two dressed differently, acted differently, and the appellant had

“R.H.” tattooed on his right hand.

       The jury convicted appellant of the first count of aggravated sexual assault of a

child, and the trial court assessed punishment at forty years’ imprisonment in the

Institutional Division of the Texas Department of Criminal Justice. This appeal ensued.

                        II.     SUFFICIENCY OF THE EVIDENCE

       In his first issue, appellant asserts that the evidence is legally and factually

insufficient to support the verdict.

A.     Standard of Review

       The court of criminal appeals has held that the Jackson v. Virginia

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.”          Brooks v.

State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v.


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Virginia, 443 U.S. 307, 318–19 (1979)).      Accordingly, we apply the Jackson standard to

our review and inquire whether “considering all of the evidence in the light most

favorable to the verdict, was a jury rationally justified in finding guilt beyond a reasonable

doubt?”      Brooks, 323 S.W.3d at 899. In our analysis, we “defer to the jury’s credibility

and weight determinations because the jury is the sole judge of the witnesses’ credibility

and the weight given to their testimony.”     Id.

          “[S]ufficiency of the evidence should be measured by the elements of the offense

as defined by the hypothetically correct jury charge for the case.     Such a charge would

be one that accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State's burden of proof or unnecessarily restrict the State's

theories of liability, and adequately describes the particular offense for which the

defendant was tried.”      Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (en

banc); Trevino v. State, 228 S.W.3d 729, 736 (Tex. App.—Corpus Christi 2006, pet.

ref’d).

B.        Discussion

          Under a hypothetically correct jury charge, a person commits first-degree felony

aggravated sexual assault of a child if:

          (1) The appellant;

          (2) Intentionally or knowingly;

          (3) Causes the sexual organ of S.H., a child, to contact or penetrate the mouth, of

             appellant; and

          (4) The victim is younger than fourteen years of age and not appellant’s spouse.


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See TEX. PENAL CODE ANN. § 22.021.

      In this case, appellant argues that the evidence presented was insufficient for the

State to prove its case beyond a reasonable doubt because:         (1) the mother did not

remember the exact dates of the allegations; (2) S.H. never mentioned the “R.H.” tattoo

on appellant to distinguish him from his twin brother, Raymond; and (3) testimony was

presented, including from the appellant, which denied his involvement in the allegations.

We are not persuaded by appellant’s argument.

      First, the mother’s exact certainty of the time frame as to when the alleged abuse

by appellant took place was outside of her personal knowledge. She did remember,

however, that she moved into the apartment complex where the Herrera twins lived in

July 1999 and started dating Raymond a month later.              Further, to counter the

uncertainty of dates, the State presented direct testimony from S.H., who testified that

the alleged assaults by appellant took place close to August 1999 when she was

eight-years old, before the school-year started, and after Raymond started dating her

mother. Second, S.H. testified that one of the main differences between appellant and

his twin was that appellant had his initials tattooed on his hand, while Raymond had four

dots tattooed on his. Appellant argues that S.H. testified that she never told police or

the forensic interviewer about seeing a tattoo on the day of the assault.   However, S.H.

made it clear that she never mentioned the tattoo to the police or the investigators

because they never asked.     S.H. also told the jury that she was able to tell the Herrera

twins apart from their tattoos, their clothing, and their personalities.    S.H. positively

identified appellant as the actor during these assaults—not Raymond.               Finally,


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appellant’s evidence that people would often confuse the Herrera twins identities,

Raymond’s convictions of sexual assault, and denial by the appellant that he assaulted

S.H. was evidence within the province and discretion of the jury to evaluate and weigh.

See Brooks, 323 S.W.3d at 899 (citing Jackson, 443 U.S. at 319 (holding that this

standard “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in

the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts.”)). We conclude that having reviewed the evidence in a light favorable

to the verdict, the jury was rationally justified in finding appellant guilty of aggravated

sexual assault as measured by the hypothetically correct jury charge.             See id.; Malik,

953 S.W.2d at 240.      Appellant’s first issue is overruled.

                              III.   REOPENING OF EVIDENCE

       In his second issue, appellant contends that he was denied due process and a fair

trial when the trial court refused to allow the defense to reopen the evidence or make an

offer of proof, or granting a mistrial prior to the jury returning a verdict.

A.     Applicable Law and Standard of Review

       A decision to reopen evidence is left to the sound discretion of the trial court.

See Doyle v. State, 24 S.W.3d 598, 601 (Tex. App.—Corpus Christi 2000, pet. denied).

However, a trial court must allow testimony to be introduced “at any time before the

argument of a cause is concluded, if it appears that it is necessary to a due

administration of justice.”     See TEX. CODE CRIM. PROC. ANN. art. 36.02 (West 2007). A

trial court’s decision to reopen a case should only be made in a “due administration of

justice,” if the profferred “evidence would materially change the case in proponent’s


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favor”—that is, the evidence is more than just relevant, it must actually make a difference

in the case.     See Peek v. State, 106         S.W.3d 72, 79 (Tex. Crim. App. 2003).

B.      Discussion

        After the close of evidence in this case, and immediately prior to the trial court

receiving the jury’s verdict, appellant’s counsel moved to re-open the evidence, or in the

alternative, make an offer of proof, based upon information that S.H. approached one of

appellant’s nieces in the restroom of the courthouse to tell her that “she was sorry for

everything and that her mother ‘made her do it.’” The trial court denied appellant’s

motion, and appellant now argues that such a denial amounts to error and a violation of

due process. We disagree.             The trial court did not allow appellant’s proffered evidence

because it was requested after argument in the case had concluded and the jury had

already reached a verdict.          Accordingly, the trial court’s denial did not amount to an

abuse of discretion.       See TEX. CODE CRIM. PROC. ANN. art. 36.02. Finally, we express

no opinion as to whether this evidence would “materially change” the case in appellant’s

favor because its proffer was requested too late in the case to require such an analysis.1

See Allman v. State, 164 S.W.3d 717, 721 (Tex. App.—Austin 2005, no pet.) (noting that

the Peek holding does not require reopening of evidence after argument is concluded).

Appellant’s second issue is overruled.




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          We further note that appellant was not without recourse following the trial court’s denial of his
motion to reopen evidence or make an offer of proof based on the purported conversation that took place in
the bathroom. The clerk’s record reveals that appellant did not file a post-verdict motion for new trial based
on newly discovered evidence, see TEX. CODE CRIM. PROC. ANN. art. 40.001 (West 2006).

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                                  IV.    CONCLUSION

       The trial court’s judgment is affirmed.




                                                  __________________________
                                                  GINA M. BENAVIDES,
                                                  Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
3rd day of May, 2012.




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