
                                          NO. 07-11-0234-CR

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL C

                                          NOVEMBER 16, 2012




                                            DAVID MORENO,


                                                Appellant
                                                  v.


                                         THE STATE OF TEXAS,
                                                Appellee
                                    _____________________________

                           FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

                     NO. 2010-428,665; HONORABLE BRADLEY S. UNDERWOOD, PRESIDING



                                          Memorandum Opinion



Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
      David Moreno was convicted of two counts of  aggravated  sexual  assault  of  a  child.[1]   He
raises two issues in which he contends 1) the trial court erred  in  admitting  audio  recordings  of
telephone conversations  between  appellant  and  the  complainant  because  they  were  obtained  in
violation of the Texas Penal Code, and 2) the jury charge contained error  because  it  characterized
the offense as aggravated sexual assault of “a child” which characterization  constituted  a  comment
on the weight of the evidence.  We affirm the judgments.
      Audio Recordings
      In his first issue, appellant complains of the  admission  of  audio  recordings  of  telephone
conversations between himself and the complainant  which  were  intercepted  by  the  police.   Those
recordings were allegedly obtained in violation of § 16.02(b)(1) of the Penal Code.  We disagree.
      Section 16.02 of the  Texas  Penal  Code  states  that  a  person  commits  an  offense  if  he
“intentionally intercepts, endeavors to  intercept,  or  procures  another  person  to  intercept  or
endeavor to  intercept  a  wire,  oral,  or  electronic  communication.”   Tex.  Penal  Code  Ann.  §
16.02(b)(1) (West Supp. 2012).  There are affirmative defenses to  prosecution,  however,  and  those
defenses, if applicable, would tend to remove any taint from the manner in which the recordings  were
garnered.  Two such defenses apply here.  The first provides that  it  is  a  defense  if  “a  person
acting under color of law” intercepts a wire, oral,  or  electronic  communication  “if  one  of  the
parties to the communication has given prior consent to interception.”  Id.  §  16.02(c)(3)(A).   The
other provides that it is a defense if the person was “not acting under color of law” yet  intercepts
the comunication where “one of the parties to the  communication  has  given  prior  consent  to  the
interception . . . .”  Id. § 16.02(c)(4)(B).
      Here, the record shows that the calls were placed via a website that not only cleansed the call
of any  reference  to  police  involvement  but  also  recorded  what  was  said.   Evidence  further
established that the complainant gave prior consent to the recordation of the calls at issue.   Thus,
it does not matter whether the police (acting under color of law) recorded the  conversation  or  the
police arranged for a third-party website (not acting under color of law) to record it.   The  victim
(a party to the call) agreed to the interception beforehand.
      Jury Charge
           Next, appellant claims that the trial court commented on the weight of  the  evidence  via
the jury charge. The comment consisted of the judge stating several times,  in  that  document,  that
appellant was charged with “aggravated sexual assault of a child.”  By including  the  phrase  “of  a
child” in the description of the offense, the court somehow relieved the State  of  having  to  prove
the victim was a child.  We disagree.
      Here, the charge of sexual assault was aggravated only if  the  complainant  was  younger  than
fourteen at the time of the offense.  Tex. Penal Code Ann. § 22.021(a)(1)(B)  &  (2)(B)  (West  Supp.
2012).  The evidence proffered at trial illustrated that 1) the complainant was born in 1983, 2)  her
mother divorced appellant in 1996 when she (the victim) was eleven, and 3)  the  complainant  was  no
longer assaulted after the divorce.  Furthermore, the court’s charge included paragraphs  admonishing
the jury that 1) the “burden of proof throughout trial is always on the state,” 2)  the  “state  must
prove every element of the offense beyond reasonable doubt to  establish  guilt,”  3)  if  the  State
fails to so prove every element, then “you must find the defendant not guilty,” 4) a “person  commits
aggravated sexual assault if the person intentionally or knowingly  causes  the  sexual  organ  of  a
child to contact the mouth or sexual organ of another person . . . and  the  child  is  younger  than
fourteen (14) years of age,” 5) “if you find from the evidence beyond a reasonable doubt that .  .  .
the defendant . . . did then and there intentionally or knowingly cause  the  sexual  organ  of  [the
complainant], a child who was then and there younger than 14 years of age and not [his] spouse . .  .
to contact the mouth of defendant, then you  will  find  the  defendant  guilty  of  the  offense  of
aggravated sexual assault of a child in Count 1 of the indictment, and so say by  your  verdict,”  6)
“[u]nless you so find beyond a reasonable doubt or if you have a reasonable doubt thereof,  you  will
acquit . . .” appellant of count one, 7) “[i]f you find from the  evidence  beyond  reasonable  doubt
that . . .  the defendant . . .  did then and there  intentionally  or  knowingly  cause  the  sexual
organ of [the complainant], a child who was then and there younger than  14  years  of  age  and  not
[his] spouse . . . to contact the sexual organ of the defendant, then you  will  find  the  defendant
guilty of the offense of aggravated sexual assault of a child in Count 2 of the  indictment,  and  so
say by your verdict,” and 8) “[u]nless you so find beyond  a  reasonable  doubt  or  if  you  have  a
reasonable doubt thereof, you will acquit the defendant of aggravated  sexual  assault  of  a  child”
under Count 2.  We are at a loss to see how those statements relieved the State  of  proving  or  the
jury of finding that the State proved (beyond reasonable doubt) that  the  victim  was  younger  than
fourteen.  That verbiage clearly mandated the jury  to  convict  only  if  the  State  proved  beyond
reasonable doubt all elements of the crime, including that the complaintant was under fourteen.   See
Saldana v. State, 287 S.W.3d 43, 52 (Tex. App.–Corpus Christi 2008, pet. ref’d)  (holding  the  State
was not relieved of the burden of proving  the  complainant’s  age  when  the  application  paragraph
allowed the jury to find appellant guilty of aggravated sexual assault of a  child  if  it  found  he
intentionally or knowingly caused the penetration of the female sexual organ of  B.B.,  a  child  who
was then and there younger than fourteen years of age); Glockzin v. State, 220 S.W.3d 140, 153  (Tex.
App.–Waco 2008, pet. ref’d) (finding no assumption of a disputed fact when the application  paragraph
allowed the jury to find the defendant guilty of aggravated sexual assault if  he  intentionally  and
knowingly caused the penetration of the sexual organ of  J.M.,  “a  child  who  was  then  and  there
younger than fourteen” when the evidence was undisputed that J.M. was a child under fourteen).
      Accordingly, appellant’s issues are overruled, and the judgments are affirmed.

                                  Per Curiam
Do not publish.



-----------------------
      [1]The victim, his stepdaughter at the time of the assaults, was an adult at the time she  made
the allegations but the abuse allegedly occurred when she was a child.



