                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-17-00136-CR



     FRANCISCO GUTIERREZ CRUZ, JR., Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 124th District Court
                 Gregg County, Texas
               Trial Court No. 45,565-B




      Before Morriss, C.J., Moseley and Burgess, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                     MEMORANDUM OPINION
        At the Gregg County jury trial of Francisco Gutierrez Cruz, Jr., on two counts of sexual

assault of a child younger than seventeen, the evidence included a video-recorded interview during

which Cruz admitted to having penile-vaginal intercourse with fourteen-year-old Nancy1 six times,

as well as DNA evidence that Cruz was the father of Nancy’s newborn child, Jerry. The jury

charge regarding punishment enhancement initially included an incorrect date of Cruz’ prior

conviction for burglary. Cruz appeals his convictions on both counts and his resulting two,

consecutive, forty-year sentences and two $10,000.00 fines.

        On appeal, Cruz argues that the evidence supporting his convictions is legally insufficient

for lack of proof of the type of “sex” involved with Nancy; that legally insufficient evidence

supported the enhancement allegation; that, therefore, the trial court erred when it included an

enhancement instruction in the jury charge; that the trial court erred in allowing amendment of the

date on the enhancement allegation; and that the trial court erred in amending the jury charge.

        We affirm the trial court’s judgment because (1) the verdict is supported by legally

sufficient evidence, (2) legally sufficient evidence supported the enhancement allegation, (3) we

need not address jury-charge error, (4) no error was preserved regarding the amendment of the

enhancement allegation, and (5) there was no error in amending the jury charge.




1
 In order to protect their privacy, the victim, her son, and her father will be referred to by the pseudonyms Nancy,
Jerry, and Wendell, respectively. See TEX. R. APP. P. 9.8(b)(2), 9.10(a)(3).

                                                         2
(1)     The Verdict Is Supported by Legally Sufficient Evidence

        Cruz contends that the evidence supporting the jury’s verdict is legally insufficient. Based

on our review of the evidence in this record, we disagree.

        Nancy testified that, in September 2015 when she was fourteen years of age, she decided

to run away from her parents’ home. So she contacted Cruz, a man who had dated her mother in

the past, and had him come get her. She stayed with the thirty-one-year-old Cruz in his Longview

apartment from September 2015 through December 2015. Nancy said she wanted to be there and

was a voluntary participant in the ensuing sexual activity with Cruz. During her time living there,

she had “vaginal sex” with Cruz a few times, but she did not keep count as to the specific number

of times it happened.2 In December 2015, she learned that she was pregnant. While she testified

that Cruz was the father of this child, she did not list him as the father on the birth certificate. She

named the child Jerry.

        On January 14, 2016, Detectives Terry Davis and Debra Stiles of the Longview Police

Department interviewed Cruz at his apartment. Stiles recorded the interview using a body camera

on her person, and the recorded footage from the interview was admitted and played for the jury.

On the recording, Cruz can be seen and heard admitting that he had sex with Nancy six times.

Cruz was arrested later on those charges.

        At the time of the police interview, Cruz voluntarily provided a DNA sample in the form

of a buccal swab. Stiles later obtained buccal swabs from Nancy and Jerry. Michelle Vrana, the



2
 She defined sex as “intercourse” and testified that she and Cruz had only “vaginal sex.” She stated, “There was no
oral sex or anything like that.”
                                                        3
DNA Section Supervisor at the North Louisiana Criminalistics Laboratory in Shreveport,

Louisiana, testified that, based on her DNA analysis of the three buccal swabs, Cruz was 217

billion times more likely to be the father of Nancy’s baby, Jerry, than any other man selected at

random. Based on her findings, she concluded, beyond a reasonable doubt, that Cruz is Jerry’s

father.

          In evaluating legal sufficiency of the evidence, we review all the evidence in the light most

favorable to the trial court’s judgment to determine whether any rational jury could have found the

essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893,

912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979));

Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). We examine

legal sufficiency under the direction of the Brooks opinion, while giving deference to the

responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772,

778 (Tex. Crim. App. 2007).

          Legal sufficiency of the evidence is measured by the elements of the offense as defined by

a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

The hypothetically correct jury 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.

                                                   4
        The indictment charged Cruz with two counts of committing sexual assault of a child by

intentionally and knowingly penetrating the sexual organ of Nancy, a child younger than seventeen

years of age, with his sexual organ. Under the statute, to obtain a conviction, the State must prove

beyond a reasonable doubt that Cruz intentionally or knowingly caused the penetration of the anus

or sexual organ of Nancy by any means. See TEX. PENAL CODE ANN. § 22.011(a)(2)(A) (West

Supp. 2017). Cruz challenges the sufficiency of only the evidence that his sexual organ penetrated

the child’s sexual organ.3

        Here, Cruz admitted to having engaged in sex with Nancy about six times. Nancy testified

that she and Cruz had penile-vaginal sex a few times. Nancy testified that Cruz is the father of her

child, and that is supported by the DNA evidence. Viewing that evidence in the light most

favorable to the verdict, we find the evidence is sufficient to support the jury’s findings that, on at

least two occasions, Cruz penetrated Nancy’s sexual organ with his sexual organ. Therefore, we

overrule this point of error.

(2)     Legally Sufficient Evidence Supported the Enhancement Allegation

        Cruz also contends that, at punishment, because of the date error in the allegation of his

prior conviction, the evidence supporting the finding of true as to the enhancement allegation was

legally insufficient because the State failed to prove the erroneous date.

        The offense alleged in this case, sexual assault of a child under seventeen years of age, is

a second degree felony, with a punishment range of two to twenty years in prison. TEX. PENAL



3
 Because Cruz does not challenge the sufficiency of the evidence proving the remaining elements, we do not address
them.
                                                        5
CODE ANN. § 12.33(a) (West 2011), § 22.011(f) (West Supp. 2017). However, if the defendant

has been previously convicted of a felony, the punishment range may be enhanced to that of a first

degree felony, that is, five to ninety-nine years, or life in prison. TEX. PENAL CODE ANN. § 12.32(a)

(West 2011), § 12.42(b) (West Supp. 2017).

        The sufficiency of the evidence underlying a finding of true to an enhancement allegation

is measured against the hypothetically correct punishment charge. See Young v. State, 14 S.W.3d

748, 750 (Tex. Crim. App. 2000). A hypothetically correct jury charge need not incorporate

allegations that give rise to immaterial variances between the indictment and the evidence. See

Gollihar v. State, 46 S.W.3d 243, 256 (Tex. Crim. App. 2001). In this case, the hypothetically

correct jury charge required the State to prove beyond a reasonable doubt that Cruz was finally

convicted of the felony alleged by the State, namely, burglary of a habitation, before the

commission of the underlying offense.4 See TEX. PENAL CODE ANN. § 12.42(b); see Flowers v.

State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007) (“The trier of fact looks at the totality of the

evidence admitted to determine 1) whether there was a previous conviction, and 2) whether the

defendant was the person convicted.”).

        The State’s notice of enhancement alleged that Cruz was previously and finally convicted

of burglary of a habitation “on the 26th day of February, 2004, in cause number 30589-B in the

124th District Court of Gregg County, Texas,” but the evidence admitted during the punishment




4
 Cruz does not argue that the State failed to provide proper notice of its intention to enhance the punishment range
through proof of the prior felony.
                                                         6
phase shows that Cruz was finally convicted June 9, 2004. Cruz contends that this discrepancy

renders the evidence of the prior conviction legally insufficient. We disagree.

       Because the purpose of the enhancement paragraph is to provide notice, “it is not necessary

to allege prior convictions for the purpose of enhancement with the same particularity which must

be used in charging on the primary offense.” Williams v. State, 980 S.W.2d 222, 226 (Tex. App.—

Houston [14th Dist.] 1998, pet. ref’d) (quoting Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App.

1986)). The defendant is entitled to a description of the judgment of former conviction that will

enable him or her to find the record and prepare for a trial on the question of whether he or she is

the named convict or that there was no final conviction. See Villescas v. State, 189 S.W.3d 290,

293 (Tex. Crim. App. 2006); Hollins v. State, 571 S.W.2d 873, 875 (Tex. Crim. App. 1978). For

instance, the date on which the prior convictions became final need not be alleged. Hollins, 571

S.W.2d at 876 n.1. Nor is it necessary to allege the sequence of the prior convictions. See Jingles

v. State, 752 S.W.2d 126, 129 (Tex. App.—Houston [14th Dist.] 1987, pet. ref’d). Even if prior

convictions are set out in the wrong order, the dates and sequence are immaterial terms in light of

the hypothetically correct jury charge. See Derichsweiler v. State, 359 S.W.3d 342, 350 (Tex.

App.—Fort Worth 2012, pet. ref’d) (indictment alleging that 1998 conviction occurred after 2003

conviction, but hypothetically correct punishment charge would have alleged correct order).

       Here, the enhancement allegation cited the county, court, cause number, nature of the case,

and year of the prior conviction, which was more than sufficient to enable Cruz to find the record

and prepare for trial regarding whether he was the person named in the enhancement conviction.

See Brown v. State, 636 S.W.2d 867, 868 (Tex. App.—Fort Worth 1982, no pet.); Gollihar, 46

                                                 7
S.W.3d at 248. Cruz challenges only the specific month and day alleged in the enhancement. It

is undisputed that the evidence showed Cruz’ final conviction in 2004, more than a decade before

the commission of the offenses in this case. To the extent that the month and day alleged in the

notice vary from those shown in the evidence, the variance was immaterial in this case, because

the State was not required to allege the date in the first place. See Hollins, 571 S.W.2d at 876 n.1;

Derichsweiler, 359 S.W.3d at 350.

       Comparing the evidence to the hypothetically correct jury charge and viewing the evidence

in the light most favorable to the verdict, a rational jury could have concluded beyond a reasonable

doubt that Cruz had been previously finally convicted of the felony offense of burglary of a

habitation. Thus, the evidence was legally sufficient to support the enhancement of Cruz’

punishment range under Section 12.42(b). See TEX. PENAL CODE ANN. § 12.42(b).

(3)    We Need Not Address Jury-Charge Error

       Based on his previous claim that the evidence supporting the enhancement was legally

insufficient, Cruz contends the trial court erred in instructing the jury regarding an enhanced

punishment range. But, because the enhancement was supported by legally sufficient evidence,

we need not address this contention.

(4)    No Error Was Preserved Regarding the Amendment of the Enhancement Allegation

       Cruz also contends that the trial court erred in permitting the State to amend its

enhancement allegation near the conclusion of the punishment phase.

       Here, Cruz affirmatively stated that he had no objections to the trial court’s proposed jury

instructions on punishment, but after the trial court gave the punishment instructions, which

                                                 8
included a recitation of the State’s enhancement allegation, Cruz objected at the bench and, after

the jury’s removal, moved to quash the enhancement and to proceed with a punishment range of a

second degree felony, because the enhancement alleged an incorrect final conviction date of

February 26, 2004. The trial court overruled Cruz’ motion. In response, the State moved to amend

the enhancement allegation to include the correct date of Cruz’ prior conviction, June 9, 2004.

Cruz responded by stating, “[T]he Court has already ruled on our motion [to quash], has overruled

our motion . . . I’ll stand on that.” The trial court granted the State’s motion to amend.

       To preserve a complaint for our review, a party must first present to the trial court a timely

request, objection, or motion stating the specific grounds for the desired ruling if not apparent from

the context. TEX. R. APP. P. 33.1(a)(1). The trial court must have ruled on the request, objection,

or motion, either expressly or implicitly, or the complaining party must have objected to the trial

court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2). Further, a “point of error on appeal must

comport with the objection made at trial.” Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App.

2002); see Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005).

       Here, Cruz contends that the trial court erred in permitting the State to amend its

enhancement allegation after having charged the jury on punishment. However, rather than

opposing the State’s attempt to change the enhancement allegation, Cruz stood on his challenge to

the original allegation. Therefore, Cruz failed to object or otherwise oppose the State’s motion to

amend, and the argument brought on appeal fails to comport with the argument he raised at trial.

See TEX. R. APP. P. 33.1(a)(1); Wilson, 71 S.W.3d at 349.

       We overrule this contention.

                                                  9
(5)    There Was No Error in Amending the Jury Charge

       Finally, Cruz argues that the trial court erred in amending the charge on punishment.

       In reviewing any alleged jury-charge error, we employ a two-step process. See Abdnor v.

State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). “Initially, we determine whether error

occurred and then evaluate whether sufficient harm resulted from the error to require reversal.”

Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor, 871

S.W.2d at 731–32).

       “[T]he jury is the exclusive judge of the facts, but it is bound to receive the law from the

court and be governed thereby.” TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007). “A trial

court must submit a charge setting forth the ‘law applicable to the case.’” Lee v. State, 415 S.W.3d

915, 917 (Tex. App.—Texarkana 2013, pet. ref’d) (quoting TEX. CODE CRIM. PROC. ANN. art.

36.14 (West 2007)). “The purpose of the jury charge . . . is to inform the jury of the applicable law

and guide them in its application. It is not the function of the charge merely to avoid misleading

or confusing the jury: it is the function of the charge to lead and prevent confusion.” Id. (quoting

Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)).

       Here, after granting the State’s motion to amend, the trial court informed the parties that it

was “going to change its jury charge” and it would simply re-read page four of the jury charge “to

reflect that correct date.” There were no objections. When the jury returned, the court said it was

going to “correct one thing that was in the Court’s Jury Instructions as to the accusation of the

prior felony conviction.” The trial court then charged the jury regarding the amended enhancement

allegation. After the amended charge was read, closing arguments began.

                                                 10
         Cruz contends that Article 36.16 precluded the trial court from amending the charge.

However, Article 36.16, gives the trial court discretion to give further charges up to the time

argument begins. TEX. CODE CRIM. PROC. ANN. art. 36.16 (West 2007). Article 36.16 provides

that, after jury arguments begin, no further charge shall be given to the jury “unless required by

the improper argument of counsel or the request of the jury, or unless the judge shall, in his

discretion, permit the introduction of other testimony.” Id.

         Here, the trial court had the discretion to amend the jury charge when it did, because

arguments had not yet begun.5 See id. Since there was no error, we need not perform a harm

analysis. Accordingly, we overrule this point of error.




5
 In support of his argument, Cruz cites Murray v. State, where the court of appeals held that the trial court erred in
amending the jury charge because the amendment effectively repudiated defense counsel’s closing argument and
allowed the jury to convict the defendant on a theory not available for comment. Murray v. State, 857 S.W.2d 806,
811–12 (Tex. App.—Forth Worth 1993, pet. ref’d). However, the facts of Murray are distinguishable from those of
the present case because the trial court in Murray amended the jury charge after the conclusion of closing arguments
whereas here, the parties were given an opportunity to object to the trial court’s amendment, and closing arguments
had not yet begun. See id. at 807–08.
                                                         11
      We affirm the trial court’s judgment.




                                                   Josh R. Morriss, III
                                                   Chief Justice

Date Submitted:      February 14, 2018
Date Decided:        March 1, 2018


Do Not Publish




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