
No. 04-97-00185-CR & 04-97-00456-CR

Teodulo VENEGAS,
Appellant

v.

The STATE of Texas,
Appellee

From the 341st Judicial District, Webb County, Texas
Trial Court No. K-96-00125-D3 & K-96-00390-D3
Honorable Elma Teresa Salinas Ender, Judge Presiding

Opinion by:	Alma L. López, Justice


Sitting:	Phil Hardberger, Chief Justice

		Alma L. López, Justice

		Karen Angelini, Justice


Delivered and Filed:	August 5, 1998


AFFIRMED IN PART; MODIFIED IN PART


	Teodulo Venegas, Jr., was convicted in Cause No. K-96-00390-D3 for aggravated sexual
assault and a jury sentenced him to life in prison.  He was also convicted in Cause No. K-96-00125-D3 for indecency with a child and sentenced by the jury to 20 years confinement.  Venegas raises
three issues to appeal these convictions.

	In his first issue, Venegas contends that his convictions were barred by the statute of
limitations.  Venegas complains that his indictment for aggravated sexual assault alleged he
committed the assault on or about December 25, 1986--almost ten years before he was indicted on
May 14, 1996.  Because he contends the statute of limitations for that conduct was three years, he
maintains that prosecution was time-barred.  Likewise, he complains that his indictment for
indecency with a child alleged an offense that occurred on November 26, 1987--almost ten years
before his indictment on March 4, 1996.  Because he contends the statute of limitations for that
conduct was three years, he also maintains his prosecution for indecency with a child was also time-barred.

	Prior to the dates of the conduct alleged in the indictments, the statute of limitations for
sexual assault and indecency with a child was five years.  See Act of May 17, 1985, 69th Leg., R.S.,
ch. 330, § 1, 1985 Tex. Gen. Laws 1393, 1393.  At that time, the offense of sexual assault included
offenses perpetrated against both adult and child victims.(1)  Venegas was indicted for "intentionally
and knowingly sexually assaulting R.S.M. by causing his sexual organ to penetrate the mouth of
R.S.M. and that said R.S.M. was then and there younger than 14 years of age."  As a result, the five
year statute of limitations that applied to sexual assault applied to the conduct that served as the basis
for Venegas's indictment for aggravated sexual assault.(2)
	Effective September 1, 1987, however, the statute of limitations for indecency with a child
and sexual assault of a child was extended to ten years.  See Act of May 30, 1987, 70th Leg., R.S.
ch. 716, § 1, 1987 Tex. Gen. Laws 2591, 2591.  The applicable legislation specifically provided for
retroactivity of the extension if the prior limitations period had not expired.(3)
	In his indictment for aggravated sexual assault, Venegas was charged with committing the
offense on or about December 25, 1986.  Under the original statute of limitations for this offense,
the statute of limitations would have expired on December 25, 1991.  Thus, the charged conduct fell
within the legislation that extended the statute of limitations for indecency with a child to ten years
because the original statute of limitations did not run before the statute of limitations for the offense
was extended on September 1, 1987.  As a  result, the State had until December 25, 1996, to indict
Venegas.  Because the State indicted Venegas for aggravated sexual assault on May 14, 1996, the
conviction for aggravated sexual assault was not time-barred.

	In his indictment for indecency with a child, Venegas was charged with committing the
offense on or about November 26, 1987.  Under the original statute of limitations for this offense,
the statute of limitations would have expired on November 25, 1992.  Thus, the charged conduct fell
within the legislation that extended the statute of limitations for indecency with a child for ten years.
As a  result, the State had until November 25, 1997, to indict Venegas.  Because the State indicted
Venegas for indecency with a child on March 4, 1996, Venegas's conviction for indecency with a
child was not time-barred.  As a result, neither of Venegas's convictions were barred by the statute
of limitations.  We overrule Venegas's first issue.

	In his second issue, Venegas maintains that his fifth amendment right against self-incrimination was violated.  Specifically, he complains about the following remark made during
closing argument:

	She knew [referring to Mrs. Venegas] there was no way around putting [R.S.M.] and
the defendant at the scene together.  She knew it.  When we get to 1989, there's only
three people who can come in here and say that [R.S.M.] was there, two on the
defense, one for us. [R.S.M.] is the only one that could come up here and say, yes,
I was there moving my aunt from her house here on Victoria.


Because he maintains that this comment referred to his decision not to testify, Venegas argues that
his conviction should be set aside.

	Article 38.08 prohibits the State from commenting on the defendant's failure to testify.  See
Tex. Code Crim. App. Ann. art. 38.08 (Vernon 1989).  To constitute a violation of the  defendant's
right against self-incrimination, the "language of such a comment must be either manifestly
intended, or of such a character that the jury would naturally and necessarily take it to be a comment
on the defendant's failure to testify."  See Johnson v. State, 611 S.W.2d 649, 650 (Tex. Crim. App.
1981).  To constitute error, however, a comment "must be direct and not an indirect allusion which
might refer to the accused's failure to testify."  Hawkins v. State, 660 S.W.2d 65, 80 (Tex. Crim.
App. 1983).  After reviewing the record in these cases, we are not convinced that the above comment
refers to Venegas.

	Venegas was charged with two counts of indecency with a child.  He was charged with
committing the offense on or about November 16, 1987, in Count I; and he was charged with
committing the offense on or about June 16, 1989, in Count II.  The above comment refers to Count
II.

	During the State's case-in-chief, R.S.M. testified about the events that resulted in Count II.
She testified that, in June 1989, she went to her aunt's house to help her aunt move.  She further
testified that, besides herself and Venegas, Venegas's wife, his son, and a cousin, were present to
help with the move. She explained that, during the move, Venegas put his hand into her shorts and
rubbed his fingers on her vagina while the others were out of the house.

	During the defense's case-in-chief, Venegas's wife testified that R.S.M. was not present at
the house that day.  Instead, she stated that four other people were present: Jose Mata, Antonio Mata,
Isabel Silva and Lourdes Sanchez.  Thus, there were at least six people, other than R.S.M. and
Venegas, who could possibly corroborate or impeach R.S.M.'s testimony that she was at her aunt's
house--Venegas's wife and his son, and the other four people that Venegas's wife said were at the
house.

	Most probably, and logically, the State relied on its own evidence during closing argument.
As a result, the prosecutor's comment that only three people could testify about R.S.M.'s presence
on or about June 16, 1989, probably referred to: Venegas's wife, his son and R.S.M.  The wife
having testified that R.S.M. was not present that day, the prosecutor's remark--"two for the defense
and one for us"--logically referred to the wife and son as defense witnesses and R.S.M.'s as the
State's witness.   Under these circumstances, we find that the State did not directly comment, if at
all, on Venegas's failure to testify.  We overrule this issue.

	In Venegas's final issue, he complains about a remark made by the prosecutor during closing
argument during the punishment phase of his trial.  Venegas, however, failed to object to this
comment at trial, and thus we are unable to consider the merits of his argument.  See Cockrell v.
State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied, 117 S. Ct. 1442 (1997) (holding that
defendant must object and obtain adverse ruling before he can complain on appeal about an
erroneous jury argument).  As a result, we overrule Venegas's last issue.

	Finally, in our review of the record, we note an error in the trial court's judgment in Cause
No. K-96-00125-D3.  The judgment in that case incorrectly reflects the date of the offense as
December 25, 1986.  That date applies Venegas's conviction for aggravated sexual assault.  The
judgment should reflect the date applicable to Count I--November 26, 1987.  Also, the judgment
improperly reflects a conviction for Counts I and II.  The jury found Venegas not guilty of Count
II.  Accordingly, we modify the judgment to reflect the correct offense and date, and otherwise
affirm the judgment.

							Alma L. López, Justice

PUBLISH
1. In regard to children, section 22.011 of the Penal Code provided:


	Sec. 22.011.  SEXUAL ASSAULT.  (A) A person commits an offense if the person:

	. . .

	(2) intentionally or knowingly:

	. . .

		(B) causes the penetration of the mouth of a child by the sexual organ of the actor.


See Act of May 27, 1983, 68th Leg., R.S., ch. 977, § 3, 1983 Tex. Gen. Laws 5311, 5313.
2. A person commits the offense of aggravated sexual assault if the actor:


	(B) intentionally or knowingly:

	. . .

		(ii) causes the penetration of the mouth of a child by the sexual organ of the actor; . . . and

	. . .

	(B) the victim is younger than 14 years of age.


Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 1998).
3. The legislation that extended the statute of limitations provided:


	Article 12.01, Code of Criminal Procedure, as amended by this Act, does not apply to an offense if
the prosecution of that offense became barred by limitations before the effective date of this Act.  The
prosecution of that offense remains barred as though this Act had not taken place.


Act of May 30, 1987, 70th Leg., R.S. ch. 716, § 2, 1987 Tex. Gen. Laws 2591, 2591.



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