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                                  MEMORANDUM OPINION

                                          No. 04-08-00588-CR

                                                Rodolfo RUIZ,
                                                  Appellant

                                                     v.

                                         The STATE of Texas,
                                               Appellee

                     From the 226th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2008-CR-4280
                              Honorable Sid L. Harle, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: August 5, 2009

AFFIRMED

           Rodolfo Ruiz was convicted by a jury of three counts of indecency with a child, two counts

of sexual performance of a child, and two counts of aggravated sexual assault of a child. Ruiz

asserts twenty-eight points of error in his brief raising challenges regarding: (1) the jury charge; (2)

the sufficiency of the evidence; (3) the admissibility of evidence; and (4) cumulative error. We

overrule Ruiz’s points of error and affirm the trial court’s judgment.
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                                                   JURY CHARGE

         In his twenty-third point of error, Ruiz contends the jury charge violated his due process right

to a fair trial “by preventing the jury from understanding what precise charges they were weighing

which resulted in an impossible task to clarify the verdicts with the jury charge requiring a full

acquittal on all charges in the indictment.” The crux of Ruiz’s complaint is that where the jury

charge refers to the indictment counts, the jury charge misidentifies the count to which the particular

offense relates, with the exception of the first three counts. For example, the offense of indecency

with a child by sexual contact involving Ruiz’s touching of the complainant’s genitals on or about

October 31, 2005 is charged in Count V of the indictment; however, the paragraph of the jury charge

relating to this offense refers to Count IV of the indictment. Thus, the jury’s verdict finding Ruiz

guilty of Count IV of the indictment actually relates to the offense charged in Count V of the

indictment.1




         1
          … Count V of the indictment stated:
         on or about the 31st day of October, 2005, RODOLFO RUIZ, hereinafter referred to as defendant, did
         intentionally and knowingly engage in sexual contact with [A.F.], A FEMALE CHILD YOUNGER
         THAN SEVENTEEN (17) YEARS AND NOT THE SPOUSE OF THE DEFENDANT, by touching
         PART OF THE GENITALS of [A.F.], with the intent to arouse or gratify the sexual desire of any
         person;

Paragraph XVII of the jury charge provided:
        Now, if you find from the evidence beyond a reasonable doubt that on or about the 31st day of
        October, 2005, in Bexar County, Texas, the defendant, Rodolfo Ruiz, did intentionally and knowingly
        engage in sexual contact with [A.F.], a female child younger than seventeen (17) years and not the
        spouse of Rodolfo Ruiz, by touching part of the genitals of [A.F.], with the intent to gratify the sexual
        desire of any person, then you will find the defendant guilty of indecency with a child by sexual
        contact as charged in Count IV of the indictment.
                 If you do not so believe, or if you have a reasonable doubt thereof, you will find the
        defendant not guilty in Count IV of the indictment.

The jury’s verdict form stated:
         W e, the Jury, find the defendant, Rodolfo Ruiz, guilty of indecency with a child as charged in Count IV of the
indictment.



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        The State responds that the misnumbering of the indictment counts in the jury charge likely

resulted from a directed verdict being granted on Counts IV, IX, and XIII. The State speculates that

the trial court, in essence, renumbered the indictment counts after omitting Counts IV, IX, and XIII.

        The only case cited in Ruiz’s brief with regard to this point of error is In re Hernandez, No.

04-03-00151-CV, 2003 WL 1733673 (Tex. App.—San Antonio Apr. 2, 2003, orig. proceeding). In

that opinion, the court was discussing the law applicable in a civil case when one jury answer

directly conflicts with another jury answer so that the jury’s answers contain an irreconcilable

conflict. See id. at *1. In the instant case, the jury’s answers did not conflict with each other.

Instead, the jury charge’s references to the indictment counts conflict with the numbering of the

counts in the indictment.2 Because the jury’s answers in this case did not contain an irreconcilable

conflict, Hernandez is readily distinguishable.

        Ruiz argues that the jury “must have been extremely confused.” There is no indication in the

record, however, that the jury had access to the indictment and attempted to match the counts

referenced in the jury charge with the counts in the indictment. In the absence of evidence to the

contrary, we must assume the jury focused on the elements of the offenses that were properly

contained in the charge.

        In his appellant’s brief, Ruiz does not cite Almanza v. State, 686 S.W.2d 157 (Tex. Crim.

App. 1985) (op. on reh’g), or make any effort to argue the charge contained reversible error under

the Almanza standard. The State cites opinions from two of our sister courts, however, that have

concluded that a similar misnumbering of the indictment counts in a jury charge did not surprise,



        2
            … W e note, however, that the indictment authorized each of the offenses for which Ruiz was convicted.
                                                                                                       See
Martinez v. State, 225 S.W.3d 550, 554 (Tex. Crim. App. 2007) (noting due process problem arises when more
convictions are permitted than are authorized by indictment).

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prejudice, or harm the appellant. See Saldaña v. State, - - - S.W. 3d - - -, No. 13-06-180-CR, 2008

WL 451836, at *17-18 (Tex. App.—Corpus Christi Feb. 21, 2008, pet. ref’d); Robinson v. State, 658

S.W.2d 779, 783-84 (Tex. App.—Beaumont 1983, no pet.). A court of appeals is not permitted to

reframe an appellant’s complaint and reverse the trial court on a theory not raised at trial or on

appeal. State v. Bailey, 201 S.W.3d 739, 743-44 (Tex. Crim. App. 2006). Accordingly, we do not

address whether the jury charge contained error that would give rise to the level of harm necessary

for a reversal.

        Ruiz’s twenty-third point of error is overruled.

                                            SUFFICIENCY

        In points of error one through three, Ruiz challenges the legal sufficiency of the evidence to

support his convictions for aggravated sexual assault. In order for evidence to be legally sufficient,

it must “convince a trier of fact beyond a reasonable doubt of the existence of every element of the

offense.” Jackson v. Virginia, 443 U.S. 307, 316 (1979). We review the legal sufficiency of the

evidence in the light most favorable to the verdict and determine whether any rational trier of fact

could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v.

State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). As the exclusive judge of the credibility of

witnesses, the jury may choose to believe all, some, or none of the testimony or evidence presented.

Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).

        In his first point of error, Ruiz challenges the legal sufficiency of the evidence to support his

conviction of aggravated sexual assault under Count I of the indictment. Count I of the indictment

charged Ruiz with intentionally and knowingly causing his male sexual organ to penetrate the female

sexual organ of A.F., the complainant, on or about the 31st day of October, 2005. The State was



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required to prove that Ruiz intentionally and knowingly caused the penetration of the sexual organ

of a child by any means and that the victim was younger than fourteen years of age. TEX . PEN . CODE

ANN . § 22.021(a)(1)(B)(i),(a)(2)(B) (Vernon Supp. 2008).

       At trial, A.F. testified that Ruiz sexually assaulted her in the weeks following her thirteenth

birthday at the apartment where A.F. lived. After A.F. described the first time Ruiz had sexual

intercourse with her, she testified that Ruiz had sexual intercourse with her certainly five times, and

possibly more than ten times, at the apartment. These incidents occurred while A.F.’s sister was

either gone from the apartment or in the shower. Ruiz was A.F.’s sister’s boyfriend, and both Ruiz

and A.F. lived with A.F.’s sister at the time.

       Annette Santos, the sexual assault nurse examiner who examined A.F., testified at trial that

A.F. told Santos that Ruiz raped her. Santos provided details from her interview of A.F. that closely

matched A.F.’s testimony at trial.

       During cross-examination, Ruiz attempted to show inconsistencies between Santos’ interview

report and A.F.’s trial testimony with regard to whether Ruiz or his brother first had sexual

intercourse with A.F. Ruiz’s interpretation of the report, however, was disputed by A.F. and Santos

at trial. Moreover, although Ruiz attempted to discredit A.F.’s testimony during cross-examination

and by presenting additional evidence, the jurors, as the exclusive judge of the credibility of

witnesses, chose to believe A.F. See Jones, 944 S.W.2d at 647.

       In his brief, Ruiz asserts that no forensic evidence supported A.F.’s testimony. The State,

however, is not required to produce forensic evidence to secure a conviction for aggravated sexual

assault, and the child victim’s uncorroborated testimony may suffice. TEX . CODE CRIM . PROC. ANN .

art. 38.07(a) & (b) (Vernon 2005).



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        Ruiz also makes reference in his brief to the date of the offense. The State, however, is not

required to prove a specific date for the offense since “it is well settled that the ‘on or about’

language of an indictment allows the State to prove a date other than the one alleged in the

indictment as long as the date is anterior to the presentment of the indictment and within the statutory

limitation period.” Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997). A.F. testified that

the abuse began shortly after her thirteenth birthday. Because this date is anterior to the presentment

of the indictment and within the statutory limitation period, the evidence is legally sufficient to prove

the date element of the offense. The evidence is legally sufficient to support the jury’s finding that

Ruiz was guilty of the offense charged in Count I of the indictment.

        In his second point of error, Ruiz challenges the legal sufficiency of the evidence to support

his conviction of aggravated sexual assault under Count II of the indictment. Count II of the

indictment charged Ruiz with intentionally and knowingly causing his male sexual organ to contact

the female sexual organ of A.F. on or about October 31st, 2005. In his brief, Ruiz complains that

Count II is a “mirror image” of Count I. Count I of the indictment, however, alleges “penetration,”

whereas Count II of the indictment alleges “contact.” From a sufficiency standpoint, “penetration

of the genitals necessarily includes contact.” Vick v. State, 991 S.W.2d 830, 834 n.2. (Tex. Crim.

App. 1999). Accordingly, the evidence is legally sufficient to support Ruiz’s conviction of the

offense charged in Count II of the indictment.3

        In his third point of error, Ruiz challenges the legal sufficiency of the evidence to support his

conviction of aggravated sexual assault under Count III of the indictment. Count III of the




        3
         … W e note that Ruiz did not raise a double jeopardy challenge to his conviction under Count II. See Vick,
991 S.W .2d at 834 n.2.

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indictment charged Ruiz with intentionally and knowingly causing his male sexual organ to contact

and penetrate the mouth of A.F. on or about October 31st, 2005.

        Ruiz asserts A.F. “was extremely vague as [to] when this activity took place and only

indicated it was AFTER her birthday.” Ruiz notes that the jury acquitted him of Count VIII of the

indictment which charged him with the same offense that was alleged to have occurred on or about

the 28th day of February, 2006. As previously stated, however,“the ‘on or about’ language of an

indictment allows the State to prove a date other than the one alleged in the indictment as long as

the date is anterior to the presentment of the indictment and within the statutory limitation period.”

Sledge, 953 S.W.2d at 256. In this case, A.F. testified that Ruiz put his penis in her mouth multiple

times after her thirteenth birthday. This testimony is legally sufficient to support Ruiz’s conviction

of the offense charged in Count III of the indictment. As a reviewing court, we will not speculate

regarding the reason the jury acquitted Ruiz of Count VIII.

       In points of error 4 through 22, 26, and 27, Ruiz raises legal and factual sufficiency

challenges based on the jury charge’s misidentification of the indictment counts. The legal and

factual sufficiency of the evidence, however, is measured by the elements of the offense as defined

by the hypothetically correct jury charge for the case. See Wooley v. State, 273 S.W.3d 260, 268

(Tex. Crim. App. 2008); Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997). A

hypothetically correct jury charge would not have misnumbered the indictment counts.

       Based on the foregoing, all of Ruiz’s points of error challenging the sufficiency of the

evidence are overruled.




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                        REPORT OF SEXUAL ASSAULT NURSE EXAMINER

       In his twenty-fourth point of error, Ruiz contends the trial court erred in admitting into

evidence the report prepared by the sexual assault nurse examiner. Ruiz did not, however, object

to the admission of the evidence. Instead, when the State tendered the report into evidence, defense

counsel stated, “No objection.” By failing to present this complaint to the trial court and obtain a

ruling thereon, Ruiz failed to preserve this issue for our review. TEX . R. APP . P. 33.1(a).

                                 PHOTOGRAPH OF COMPLAINANT

       In his twenty-fifth point of error, Ruiz argues the trial court abused its discretion by admitting

a photograph of A.F., taken when she was twelve years old. The photograph was introduced during

the guilt/innocence phase of the trial. Ruiz asserts the defense stipulated to A.F.’s age at the time

of the alleged crimes, and therefore the photo was gratuitous. He also argues the photograph portrays

A.F. in a false light, as it shows her at only twelve years old, rather than thirteen. Moreover, Ruiz

argues the photograph of A.F. as a younger child was introduced only to inflame the jury’s emotions,

resulting in an unfair trial. We disagree.

       When determining whether the trial court erred in admitting relevant photographs into

evidence, our review is limited to determining whether the probative value of the photos is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the

jury, undue delay, or needless presentation of cumulative evidence. TEX . R. EVID . 403; Young v.

State, 283 S.W.3d 854, 874 (Tex. Crim. App. 2009). The admissibility of a photograph is within the

sound discretion of the trial judge. Young, 283 S.W.3d at 875 (citing Paredes v. State, 129 S.W.3d

530, 539 (Tex. Crim. App. 2004); Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997)).

The trial court’s decision is reviewed under an abuse of discretion standard, and may be disturbed



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on appeal only when it falls outside the zone of reasonable disagreement. Young, 283 S.W.3d at 874.

A photograph is generally admissible if verbal testimony about the matters depicted in the

photograph is also admissible. Id. at 875.

       In this case, the trial court did not abuse its discretion by admitting the photograph of A.F.

A.F. was fifteen at the time of trial. The photograph was introduced to give the jury a more accurate

impression of A.F. at the time the abuse began. While the defense did stipulate to A.F.’s age at the

time of the offenses, and A.F.’s testimony established she was twelve rather than thirteen in the

photograph, the danger of unfair prejudice due to the age difference is slight. Likewise, the snapshot

of A.F. as a younger child was not so inflammatory that the danger of prejudice outweighed its

probative value. Consequently, Ruiz’s twenty-fifth point of error is overruled.

                                       CUMULATIVE ERROR

       In his twenty-eighth point of error, Ruiz asserts that the cumulative impact of all of the errors

alleged in his brief was so great that reversal is required. Because we have overruled all of Ruiz’s

other points of error, there is no cumulative error requiring reversal. Accordingly, Ruiz’s twenty-

eighth point of error is overruled.

                                             CONCLUSION

       The trial court’s judgment is affirmed.

                                                        Phylis J. Speedlin, Justice

DO NOT PUBLISH




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