                         NUMBER 13-12-00468-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

ORLANDO REYES
A/K/A ORLANDO MARTINEZ REYES,                                             Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 347th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION
               Before Justices Rodriguez, Garza, and Perkes
                 Memorandum Opinion by Justice Perkes
      Appellant Orlando Reyes appeals his conviction for indecency with a child by

contact, a second-degree felony. See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011).

A jury found appellant guilty and assessed punishment at fifty years’ confinement in the

Texas Department of Criminal Justice, Institutional Division. By two issues, which we
have re-ordered, appellant argues that (1) the evidence is insufficient to support his

conviction; and (2) the trial court failed to include a “not guilty” verdict form for the

indecency charge. We affirm.

                                         I. BACKGROUND1

        D.S., a four-year-old girl, approached her paternal aunt, Monica, and told her, “[A]

man touched me down there.” Monica testified that she asked D.S., “What man?” and

D.S. responded, “Diana’s man.” Diana is D.S.’s great aunt. Monica asked, “Diana’s

boyfriend?” and D.S. answered, “Yes.” Appellant is Diana’s boyfriend.

        D.S. was taken to a hospital, where Elizabeth Williams, a Sexual Assault Nurse

Examiner, examined her.              Williams’s report reflected:           “Patient states, ‘Diana’s

boyfriend touched me there (patient points to female sexual organ) with him [sic] hand

more than once. It hurts.’” The report was admitted into evidence, and Williams read

the foregoing statement to the jury. Williams found no trauma but testified that digital

penetration does not always cause trauma.

        D.S. testified. She was five at the time of appellant’s trial. The State asked D.S.

if anyone touched the places on her body that nobody is supposed to see or touch. D.S.

responded that “Guero” had. Guero is the nickname of Monica’s brother, Adam Rivera,

not appellant. The State thereafter asked D.S. whether it was appellant who touched her

in those places, and D.S. responded, “Yes.” Using a doll, D.S. then showed where

appellant allegedly touched her, and the record reflects D.S. pointed to “the middle of the


        1
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.

                                                     2
doll which is the vaginal area.” D.S testified that one night she awoke because appellant

was “[t]ouching my middle part.” On cross-examination, however, the defense asked

D.S. to locate on the doll the places where Guero touched her, and D.S. pointed to the

“middle portion.” The following exchange between the State and D.S. occurred on

redirect examination:

       Q      Do you know who [appellant] is?

       A      Yes.

       Q      When you talk about [appellant], is that Diana’s man? Was he
              Diana’s boyfriend?

       A      Uh-huh.

       Q      “Yes”? Okay.

              And [appellant] touched you there one time in the middle. Can you
              say it aloud?

       A      Yes.

       Q      Okay. Who is Guero? Is that [appellant]?

       A      Uh-huh.

       Pamela Rodriguez, a forensic interviewer at the Children’s Advocacy Center,

interviewed D.S. after the alleged touching.     D.S. told Rodriguez several times that

appellant touched her on her “private,” which D.S. indicated was her vagina by pointing to

it. Rodriguez testified that D.S. was consistent in the details of appellant touching her.

The trial court admitted a video recording of Rodriguez’s interview, and it was published to

the jury for consideration.




                                             3
       The State called Patricia Goldberg to testify. Goldberg was Adam Rivera’s (a/k/a

Guero) probation officer.     Goldberg testified that Rivera was placed on community

supervision in 2010, but that in March 2011, the State moved to revoke Rivera’s

community supervision. Goldberg affirmed on cross-examination that from March 2011

through appellant’s trial, Rivera was in confinement. D.S.’s outcry was in July 2011.

                          II. SUFFICIENCY OF THE EVIDENCE

       By his second issue, appellant argues the evidence is insufficient to support the

verdict of guilty of indecency with a child. We disagree.

A.     Standard of Review

       “The standard for determining whether the evidence is legally sufficient to support

a conviction is ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original);

see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.).

“The jury is the exclusive judge of the credibility of the witnesses and of the weight to be

given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the

evidence.” Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc)

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

permitted to make reasonable inferences from the evidence presented at trial, and

circumstantial evidence is as probative as direct evidence in establishing the guilt of an

actor. Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007).


                                               4
          We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327

(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)). Such a charge is 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. Id. A person commits indecency with a child if the

person engages in sexual contact with a child younger than seventeen years of age or

causes the child to engage in sexual contact. TEX. PENAL CODE ANN. 21.11(a)(1).

B.        Discussion

          The law has long recognized that the testimony of a single witness can be

sufficient to support a felony conviction. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex.

Crim. App. 1971); Shah v. State, 403 S.W.3d 29, 35 (Tex. App.—Houston [1st Dist.] 2012,

pet. ref’d); see also Molina v. State, No. 13-12-00480-CR, 2013 WL 4330222, at *5 (Tex.

App.—Corpus Christi Aug. 15, 2013, no pet.) (mem. op., not designated for publication).

A child victim’s outcry statement alone can be sufficient to sustain a conviction for a

sexual offense. See Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991)

(en banc); Saldana v. State, 287 S.W.3d 43, 60 (Tex. App.—Corpus Christi 2008, pet.

ref’d).

          D.S. testified that appellant touched her in her “middle,” and she showed the jury

the vaginal area on a doll as the location of the touching. D.S.’s outcry reflected that

appellant touched her and that she felt pain as a result of the contact. The jury viewed


                                              5
the video recording of Rodriguez’s interview with D.S. in which D.S. repeatedly claimed

appellant touched her on her private.              When Rodriguez asked D.S. if anyone else

touched her there, D.S. said, “No.” Monica testified that when she discussed going to

court with D.S., D.S. asked, “Because of what [appellant] did to me?” Goldberg testified

that Rivera (a/k/a Guero) had been confined since March 25, 2011, more than three

months before D.S.’s outcry in early July 2011.

        Appellant primarily challenges D.S.’s identification of him as the person who

improperly touched her.           The jury, however, is the exclusive judge of a witness’s

credibility and the jury alone reconciles conflicts in the evidence. See Wesbrook, 29

S.W.3d at 111 (jury determines credibility); Hooper, 214 S.W.3d at 14 (jury can make

reasonable inferences).          Here, the jury could have reconciled D.S.’s testimony at trial,

and could have concluded that appellant touched D.S. based upon the entirety of her

testimony, the content of her outcry report statements, and the evidence that Rivera was

confined at the time of the abuse.2 The jury was free to disbelieve appellant’s denial,

which appellant gave to police during a recorded interview.

        Viewing the evidence in the light most favorable to the prosecution, we conclude a

rational jury could have found the essential elements of indecency with a child by contact




        2
           Appellant also challenges D.S.’s credibility, arguing that she was inconsistent about her location
at the time of the touching. Monica testified that D.S. and her family lived with Diana and appellant until
about June 2011, when D.S. and her family moved to a new address. Appellant’s contention relies on
Detective Crispen Mendez’s testimony that the child’s statement indicated the touching occurred at the old
address even though D.S. told Rodriguez it happened at her “new house.” Detective Mendez testified,
however, that he did not talk to D.S., deferring to the Child Advocacy Center for the interview. Rodriguez
conducted that interview. We conclude that a rational jury could have reconciled this evidence, and that
D.S.’s credibility was for the jury’s determination. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim.
App. 2000) (en banc).
                                                     6
beyond a reasonable doubt.       See Johnson, 364 S.W.3d at 293–94.           We overrule

appellant’s second issue.

                                 III. VERDICT FORMS

      By his first issue, appellant contends the trial court erred in omitting from the jury

charge a “not guilty” verdict form in its submission of the lesser-included offense of

indecency with a child.

      The State charged appellant with aggravated sexual assault and the

lesser-included offense of indecency with a child. The trial court submitted the verdict

forms to the jury in the manner shown below:

                                   VERDICT FORMS

                                        COUNT 1
      USE ONLY ONE FORM:

            We, the Jury, find the Defendant, ORLANDO REYES AKA
      ORLANDO MARTINEZ REYES, not guilty of Count 1: Aggravated
      Sexual Assault of a Child, as alleged in the indictment

                                                              _________________
                                                              PRESIDING JUROR

      OR

            We, the Jury, find the Defendant, ORLANDO REYES AKA
      ORLANDO MARTINEZ REYES, guilty of the lesser-included offense of
      Indecency with a Child.

                                                              _________________
                                                              PRESIDING JUROR




                                            7
       OR

             We, the Jury, find the Defendant, ORLANDO REYES AKA
       ORLANDO MARTINEZ REYES, guilty of Count 1: Aggravated Sexual
       Assault of a Child, as alleged in the indictment.

                                                               _________________
                                                               PRESIDING JUROR

       Before the trial court read the jury charge to the jury, it asked the defense whether

it had any objections to the jury charge. The following excerpt contains the defense’s

response:

       [THE DEFENSE]:       No, Your Honor. In fact, I have reviewed it with my
                            client. There are no objections to the proposed
                            Charge.

       THE COURT:           Thank you. State has rested their case.

       [THE DEFENSE]:       We don’t have any objections to the Charge.           My
                            client reviewed it again.

The court read the charge to the jury, and the jury retired for deliberations.

       The jury returned with a verdict. The presiding juror had signed two verdict forms:

one finding appellant not guilty for aggravated sexual assault and one finding appellant

guilty for indecency with a child. The trial court informed the attorneys, “They [the jurors]

are doing exactly what we thought they would do; not guilty on the Count 1 aggravated

sexual assault and guilty on the indecency. They did not pay attention to the top where it

says only use one form.” At that point, appellant moved for mistrial on the grounds that

the verdict forms were improper for failing to include a “not guilty” option on the

lesser-included offense. The trial court denied the mistrial motion.




                                             8
A.     Standard of Review

       When used, a verdict form becomes part of a jury charge, and we review

verdict-form errors as jury-charge errors. Jennings v. State, 302 S.W.3d 306, 307 (Tex.

Crim. App. 2010). When we are presented with an argument that a trial court committed

jury-charge error, we must conduct a two-step review: “First, the reviewing court must

determine whether the jury charge contains error. Second, the court must determine

whether sufficient harm resulted from the error to require reversal.” Mann v. State, 964

S.W.2d 639, 641 (Tex. Crim. App. 1998) (en banc); see Benn v. State, 110 S.W.3d 645,

648 (Tex. App.—Corpus Christi 2003, no pet.).

B.     Discussion

       Texas law has long recognized that a trial court need not attach a verdict form to a

jury charge, but if it does, “it must set out every ‘guilty’ or ‘not guilty’ option that is available

to the jury.” Jennings, 302 S.W.3d at 310; see Oates v. State, 51 Tex. Crim. 449, 455,

103 S.W. 859, 862–63 (Tex. Crim. App. 1907); Williams v. State, 24 Tex. App. 637, 667, 7

S.W. 333, 336 (1888). It is improper to submit a verdict form that omits any “guilty” or

“not guilty” option available to the jury. Jennings, 302 S.W.3d at 310.

       Here, the verdict form, which was similar to the improper verdict form analyzed in

Jennings, did not have a “not guilty” option for the lesser-included offense of indecency

with a child. We hold this to be error, and the State concedes it was error.

C.     Harm

       Upon finding error, we apply one of the two following standards of review: “Where

there has been a timely objection made at trial, an appellate court will search for only


                                                 9
‘some harm.’    By contrast, where the error is urged for the first time on appeal, a

reviewing court will search for ‘egregious harm.’” Mann, 964 S.W.2d at 641 (quoting

Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994)). The Texas Code of

Criminal Procedure provides, “Before [the jury] charge is read to the jury, the defendant or

his counsel shall have a reasonable time to examine the same and he shall present his

objections thereto” in writing or dictated to the court reporter in the presence of the court

and the state’s counsel. TEX. CRIM. PROC. CODE ANN. art. 36.14 (West 2007). For an

objection to be timely, the defendant must object to the charge before it is read to the jury.

See Shaw v. State, 243 S.W.3d 647, 655 n.7 (Tex. Crim. App. 2007); Pendleton v. State,

434 S.W.2d 694, 696 (Tex. Crim. App. 1968); Villarreal v. State, 429 S.W.2d 508, 510

(Tex. Crim. App. 1968).

       Here, when appellant was given the opportunity to object to the verdict forms

before the trial court read the charge to the jury, appellant twice declared he had no

objection. Appellant did not challenge the verdict forms until after the jury returned with a

verdict.   We hold that the challenge was untimely, and we review the record for

egregious harm. See Mann, 964 S.W.2d at 641; Benn, 110 S.W.3d at 648.

       Jury-charge error is egregiously harmful if it affects the very basis of the case,

deprives the defendant of a valuable right, or vitally affects a defensive theory. Allen v.

State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008) (citing Stuhler v. State, 218 S.W.3d

706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim.

App. 2007)). In sum, the error must have been so harmful as to effectively deny the

accused a fair and impartial trial. See Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim.


                                             10
App. 2008). Egregious harm is difficult to prove, and it is evaluated on a case-by-case

basis. Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).

       In determining whether appellant was deprived of a fair and impartial trial, we

review “the entire jury charge, the state of the evidence, including the contested issues

and weight of probative evidence, the argument of counsel[,] and any other relevant

information revealed by the record of the trial as a whole.” Id. (quoting Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (en banc)). We will examine “any . . . part

of the record as a whole which may illuminate the actual, not just theoretical, harm to the

accused.” Id. at 490 (quoting Almanza, 686 S.W.2d at 174).

       1.     Entire Jury Charge

       The jury charge instructed the jury to find appellant not guilty of the lesser-included

offense unless it found the evidence showed guilt beyond a reasonable doubt. The

charge outlined appellant’s presumption of innocence, and it stated that the prosecution

had the burden of proving each element of the offense beyond a reasonable doubt. The

charge continued, “In the event you have a reasonable doubt as to the Defendant’s guilt

after considering all the evidence before you, and these instructions, you will acquit him

and say by your verdict, ‘Not Guilty’.”

       Viewed in its entirety, we hold the jury charge impressed on the jury the need to

find the elements of indecency beyond a reasonable doubt to convict on that ground.

This factor weighs against finding egregious harm.




                                             11
       2.     State of the Evidence

       As discussed earlier in this opinion, the evidence was legally sufficient to prove

beyond a reasonable doubt that appellant was guilty of indecency with a child. This

factor weighs against finding egregious harm. See, e.g., Smith v. State, 397 S.W.3d

765, 771–72 (Tex. App.—San Antonio 2013, no pet.); Bui v. State, 964 S.W.2d 335, 347

(Tex. App.—Texarkana 1998, pet. ref’d).

       3.     Argument of Counsel

       In his final words to the jury, defense counsel argued, “I see no other way to vote

but a not guilty on both counts; on the indecency and on the aggravated assault.” This

comment emphasized that the jury could find appellant not guilty on the indecency

charge. This factor weighs against finding egregious harm.

       4.     Other Relevant Information

       After the jury returned with the verdict in which the jury signed two forms, the trial

court returned the jury for additional deliberations with additional oral instructions on how

to use the verdict forms. The trial court instructed:

              In regards to Count 1, and there is only one count, if your verdict is
       not guilty of anything, then your signature needs to be on the top paragraph.

              If your verdict is that he is guilty of the lesser included offense of
       Indecency with a Child but not guilty of the aggravated sexual assault, your
       verdict, your signature needs to be on line 2.

             If your verdict is that you find him guilty of the aggravated sexual
       assault of a child, then your verdict needs—your signature needs to be on
       paragraph 3.

The court instructed the jury that its signature should only appear on one form. The jury

deliberated and returned the original verdict form, scratching out the signature that had

                                             12
appeared on the first paragraph and leaving the signature that had been placed on the

second paragraph.

       We consider the court’s additional instructions highly relevant. The instructions

informed the jury of the manner whereby it could find appellant not guilty of either offense.

The jury was not left alone to speculate whether a “not guilty” finding was unavailable for

the lesser-included charge. Also relevant is the fact that the trial court polled the jury to

confirm the verdict reflected each juror’s intent. The jurors all asserted that the verdict

matched their personal intent. This factor weighs against finding egregious harm.

D.     Summary

       The trial court’s verdict form was deficient because it failed to include a “not guilty”

paragraph for the lesser-included offense. See Jennings, 302 S.W.3d at 310. Having

considered the relevant factors, we conclude that although the trial court’s submission of

the verdict form lacking a “not guilty” option for the lesser-included offense was error, it did

not cause appellant egregious harm. See Taylor, 332 S.W.3d at 489. We overrule

appellant’s first issue.

                                     IV. CONCLUSION

       We affirm the trial court’s judgment.



                                                      GREGORY T. PERKES
                                                      Justice

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

Delivered and filed the
5th day of December, 2013.

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