
NO. 07-01-0109-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

DECEMBER 30, 2002
______________________________

DAVID MEDINA,




		Appellant


v.

THE STATE OF TEXAS, 


		Appellee

_________________________________

FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

NO. 43136-E; HON. ABE LOPEZ, PRESIDING
_______________________________

Before QUINN and REAVIS, JJ., and BOYD, SJ. (1)
	David Medina (appellant) appeals from a final judgment under which he was
convicted of delivery of a controlled substance.  Through a single issue, he contends that
he was denied due process and a fair trial since the "State failed to allow [him] to take a
shower or sleep on anything other than concrete prior to the [punishment] hearing" and the
trial court "would not allow him to explain his appearance to the jury."  This issue is identical
to that raised in David Medina v. State, No. 07-01-0107-CR, pending in this court.
	Consequently, we adopt the reasoning and discussion in our opinion issued this day
in cause number 07-01-0107-CR and conclude that it sufficiently disposes of the single
issue appellant raises at bar.  In doing so, we also overrule appellant's contention and
affirm the judgment entered below. 
							Brian Quinn
							   Justice


Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.  Tex. Gov't Code
Ann. §75.002(a)(1) (Vernon Supp. 2002). 

s-examination of M.V. during the trial before the
jury;
	4. admitting the testimony of the SANE nurse;
	5. admitting the testimony of the "outcry " witness;
	6. denying the appellant's motion for mistrial;
	7. commenting on the evidence;
	8. allowing evidence of an extraneous offense;
	9. limiting the testimony at the motion for new trial hearing; and,  
         10. denying the motion for new trial.
Further, by his ninth issue, appellant contends that the evidence was factually and legally
insufficient to sustain the finding of true to the allegations in the State's petition.


Competency of M.V.

	Appellant's first two contentions were briefed together and both concern the
competency of M.V. to testify and will, therefore, be addressed together.  M.V. was three-years old at the time of the incident and was four-years old at the time of trial.  Appellant
contested M.V.'s competency as a witness and requested a hearing on the matter. See
Tex. R. Evid. 601(a)(2).  The trial court held a hearing on the issue of competency out of
the presence of the jury and ruled that she was competent to testify.  We review that ruling
under an abuse of discretion standard.  Broussard v. State, 910 S.W.2d 952, 960
(Tex.Crim.App. 1995), In re A.W., 147 S.W.3d 632, 635 (Tex.App.-San Antonio 2004, no
pet.) (applying the same standard of review to juvenile cases).  
	At the hearing on the competency of M.V., the State conducted an examination of
M.V. during which she testified as to her complete name, age and that she was able to
distinguish between the truth and a lie by identifying the color of a pen (blue) the attorney
was holding.  When asked if she was told the pen was black would it be the truth or a lie,
she testified it would be a lie.  M.V. further acknowledged that she understood that she
would be required to tell the truth in court.  Upon cross-examination by appellant, M.V.
answered "yes" to a series of questions about having met appellant's attorney before,
playing with puppies belonging to appellant's counsel and hunting for Easter eggs with the
attorney.  Each of these questions were designed to show that the witness would agree
whenever leading questions were asked.  Based upon this exchange, appellant contends
that M.V. was not competent to testify.  While appellant's point is that M.V. did not know the
difference between the truth and a lie, during appellant's own cross-examination of M.V.,
she was asked what the word "lie" means.  M.V. answered, "That it's not the truth and it's
a lie."  This statement demonstrates that M.V. knew the difference between the truth and
a lie.  In determining whether the trial court abused its discretion, we are not to focus only
on the questions asked during the hearing on competency but rather to review the entire
record of her testimony.  Clark v. State, 558 S.W.2d 887, 890 (Tex.Crim.App. 1977).  The
record reveals that, during both the competency hearing and the trial on the merits, M.V.
was able to communicate the actions of appellant and the events surrounding the incident
in question.  From this review, we conclude that M.V. had the ability to intelligently observe
the events, the capacity to recollect and narrate them, and, from the competency hearing,
the moral responsibility to tell the truth.  Upton v. State, 894 S.W.2d 426, 429
(Tex.App.-Amarillo 1995, writ ref'd).  Accordingly, we find no abuse of discretion in the
ruling that M.V. was competent to testify.
	Appellant also contends that the court impermissibly limited his right to cross-examine M.V. during the competency hearing.  Specifically, appellant contends that the
following colloquy demonstrates an attempt by the court to limit cross-examination.  After
asking a series of leading questions designed to show that M.V. would say "yes" whenever
asked a leading question, the following exchange occurred:
The Court: I'm not going to allow you to do any more of that.

Trial Counsel: I have no other way, Judge, to show that she'll say stories.

The Court: You have-you've made your point. You said you wanted to call
yourself. Go ahead.
At that time, appellant's counsel took the witness stand and testified that M.V.'s cross-examination testimony was untruthful.
	Appellant complains that the court impermissibly limited his cross-examination of
M.V., yet the exchange clearly demonstrates that the court was aware of the potential for
false testimony from the witness but, based upon all of the factors, found the witness
competent.  It appears that the trial court felt that the potential that M.V. would testify falsely
was an issue of the weight to be afforded the testimony at trial rather than evidence of
M.V.'s incompetence as a witness.  We do not find the court abused its discretion in ruling
M.V. competent or in limiting appellant's cross-examination at the competency hearing. 
Broussard, 910 S.W.2d at 960 ; In re A.W., 147 S.W.3d at 635.  Appellant's first two issues
are overruled.
Cross-examination of M.V. during the trial

	Appellant next contends that the court impermissibly limited his right to cross-examine M.V. in front of the jury and cites the court to certain portions of the reporter's
record.  Those portions of the reporter's record cited by appellant occurred during a
continuation of the competency hearing out of the presence of the jury.  At the conclusion
of that hearing and after again ruling that the witness was competent to testify, appellant's
counsel said there were more questions that she wished to ask the witness.  The court
inquired as to what the questions were and, after receiving counsel's response, made the
following statement, "Not all of that material has to be presented at this hearing as long as
she has sufficient intellect to relate- I'm denying any additional questions.  It may be a
problem at trial when we get into that.  She is qualified and she is available." (emphasis
added).  M.V. was then excused from the witness stand and other matters were taken up. 
	During the State's case-in-chief, M.V. testified about the events leading to the trial
of appellant.  At the conclusion of the State's direct examination, appellant asked 15
questions on cross-examination.  After re-direct examination by the State, appellant passed
the witness.  At no time during M.V.'s testimony before the jury did appellant ask any of the
leading questions referred to during the competency examination.  At no time during M.V.'s
trial testimony did appellant ask the court to reconsider any previous ruling, object to any
previous ruling, or even mention any previous ruling.  It is from this record that appellant
urges that the court limited his right of cross-examination.  
 To preserve error for review, a litigant must object and state the grounds for the
ruling sought from the court with sufficient specificity to make the court aware of the
complaint, unless the specific grounds are apparent from the context of the objection.  Tex.
R. App. P. 33.1(a)(1)(A). (1)  Preservation of error is a systemic requirement that a first-level
appellate court should review on its own motion.  See Jones v. State, 942 S.W.2d 1, 2 n.1
(Tex.Crim.App. 1997); Hughes v. State, 878 S.W.2d 142, 151 (Tex.Crim.App. 1992) (op.
on reh'g).  Appellant seems to argue that the record demonstrates that the grounds for his
objection were apparent from the context of the hearing on competency.  However, the
record reveals that the ruling of the court was to the issue of limitation of appellant's cross-examination of M.V. during the competency hearing, and that the issue of any limitation of
cross-examination during the trial before the jury would have to be handled at that time. 
At no time during the cross-examination of M.V. in front of the jury did appellant attempt to
ask any of the questions of which he now complains, request the court to rule upon his right
to ask those questions, or in any manner put the trial court on notice that he felt that his
right to cross-examine M.V was limited.  Accordingly, we find that any limitation of
appellant's cross-examination of M.V. before the jury was not preserved.  See Rule 
33.1(a)(1)(A).  Appellant's issue is overruled.
Testimony pursuant to Texas Rule of Evidence 803(4)

	Appellant next contends that the trial court erred in allowing Lucrecia Delawater, the
sexual assault nurse examiner, to testify as to statements made by M.V. during the
examination.  The record reveals that Delawater was employed by the Denton Regional
Medical Center, had been a registered nurse since May 1994, and had been certified as
a sexual assault nurse examiner for "several years" at the time of trial.   During direct
examination, Delawater testified that a "SANE" exam consisted of a detailed history, a
head-to-toe assessment, a detailed anogenital exam, and the collection of forensic
evidence.  The trial court allowed Delawater to testify about statements M.V. made during
the exam, over appellant's hearsay objection.  Appellant posits that, inasmuch as the
testimony was offered pursuant to the hearsay exception contained in Texas Rule of
Evidence 803(4), statements made for purposes of medical diagnosis and treatment, and
because the witness had acknowledged that she was not qualified to make a diagnosis,
therefore, the evidence constituted inadmissible hearsay.  See Tex. R. Evid. 803(4). 
Delawater's admission that she was not qualified to make a diagnosis of M.V. was in direct
response to a question by appellant as to whether she was qualified to make a diagnosis
under the provisions of the Texas Occupation Code, section 301.002. (2)  Tex. Occ. Code
Ann. § 301.002 (Vernon 2004). (3) 
 A trial court's decision to admit or exclude evidence is reviewed under an abuse of
discretion standard.  See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000);
Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996); Montgomery v. State, 810
S.W.2d 372, 390 (Tex.Crim.App. 1990) (op. on reh'g).  A reviewing court should not
reverse a trial judge's decision whose ruling was within the zone of reasonable
disagreement.  Green, 934 S.W.2d at 102. 
	Appellant cites this court to  Texas Occupation Code, section 301.002, without any
reference to cases supporting his position that the provision would limit the qualification of
a nurse to testify about statements made during an examination of a sexual assault victim. 
Since the effective date of the Texas Occupation Code provision cited by appellant, we
have found no cases indicating that a nurse may not meet the exception of Rule 803(4). 
See Bautista v. State, 189 S.W.3d 365, 368-69 (Tex.App.-Fort Worth 2006, no pet. h.)
(registered nurse permitted to testify about statements made by victim during exam); Wilder
v. State, 111 S.W.3d 249, 255 (Tex.App.-Texarkana 2003, pet. ref'd) (nurse permitted to
testify about statements made by victim during exam); Edwards v. State, 107 S.W.3d 107,
116-17 (Tex.App.-Texarkana 2003, pet. ref'd) (sexual assault nurse examiner permitted
to testify about statements made by victim during exam); Beheler v. State, 3 S.W.3d 182,
188-89 (Tex.App.-Fort Worth 1999, pet. ref'd.) (sexual assault nurse examiner permitted
to testify about statements made by victim during exam).  Additionally, Delawater is a
health care provider, as defined by both the previous medical malpractice statute and the
current medical malpractice statute.  See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 1.03
(Vernon Supp. 2002) ; Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(12)(A) (Vernon
2003).  The history of the medical treatment exception to the hearsay rule, as reflected in
the reported cases, and the consistent inclusion of nurses within the definition of "health
care provider," as promulgated by the legislature, leads us to the conclusion that the trial
court did not abuse its discretion in allowing the testimony of Delawater.  Therefore,
appellant's issue is overruled. 
Outcry statement

 Next, appellant makes several complaints about the testimony of Hilda Sanchez,
M.V.'s mother, regarding an outcry statement made by M.V.  The trial court conducted a
hearing on the admissibility of the evidence outside the presence of the jury.  Prior to the
hearing, the State produced a summary of the outcry statement.  The trial court overruled
appellant's objection and admitted the outcry testimony.  
	As a reviewing court, we review the admission of evidence under an abuse of
discretion standard.  See Weatherred, 15 S.W.3d at 542 ; Green, 934 S.W.2d at 101-02; 
Montgomery, 810 S.W.2d at 390.  We will not reverse a trial judge's decision whose ruling
was within the zone of reasonable disagreement.  Green, 934 S.W.2d at 102. 
	First, appellant contends that the State failed to meet the requirements of section
54.031 of the Texas Family Code.  See Tex. Fam. Code Ann. § 54.031 (Vernon 2002). (4) 
Appellant claims the summary provided to him was different than the testimony offered. 
The Family Code requires that, 14 days before the date the hearing begins, the proponent
of the outcry statement provide the other party with a written summary of the statement.
§ 54.031(c)(1)(C).  The statute is silent as to how detailed the summary must be and how
it is to be compared to the testimony offered at trial.  However, the courts have long held
that the purpose of the summary requirement is simply to prevent the defendant from being
surprised by the introduction of the outcry statement.  Gay v. State, 981 S.W.2d 864, 866
(Tex.App.-Houston [1st Dist] 1988, pet. ref'd) (applying the summary requirement found in
Texas Code of Criminal Procedure, article 38.072). (5)  However, the summary must be more
than a general allusion to sexual abuse.  Davidson v. State, 80 S.W.3d 132, 136
(Tex.App.-Texarkana 2002, pet. ref'd).  It must give the defendant notice of the content and
scope of the outcry statement and is sufficient if it reasonably informs the appellant of the
essential facts related to the outcry statement. Id.
	Comparison of the summary of the outcry statement with the testimony of Hilda
reveals a difference.  The summary indicates that M.V. alleged that appellant "put his
'colita' inside her 'colita.'" (6)  During her trial testimony, Hilda did not testify that M. V. told her
that appellant penetrated M.V.'s sexual organ with his.  In all other particulars, the 
summary of the outcry statement matches Hilda's testimony.  Most complaints about a
variance between the summary of the outcry statement and the testimony address
situations where the testimony exceeds the scope of the outcry statement. See generally
Gay, 981 S.W.2d at 866 (summary indicating only "kissing and touching" were insufficient
to overcome hearsay objection when testimony of outcry statement alleged additional forms
of sexually abusive behavior).  In the present case, the summary alleges a broader scope
than the testimony.  As a result, we cannot say that the trial court abused its discretion by
admitting the outcry statement based upon the variance between the summary and the
testimony.  Appellant received ample notice and was not surprised by the testimony.   
Davidson, 80 S.W.3d at 136.
	Appellant next complains that M.V. was not available and, therefore, the
requirements of the statute were not met.  § 54.031(c)(3).  Appellant's argument is
premised on his prior complaints that M.V. was not competent to testify and that appellant
was denied the right to fully cross-examine her.  These complaints have been previously
discussed and overruled and, therefore, we find no merit in appellant's contention that M.V.
was unavailable.  
	Finally, appellant argues that Hilda was not the first person to whom M.V. made the
outcry statement.  The record does reflect testimony that M.V. made an outcry statement
to her father before speaking with Hilda.  In response to appellant's question, "Was your
dad the first person that you told about this," M.V. responded "Yes."  However, the
evidence presented at the hearing to determine the admissibility of the outcry statement
established the fact that M.V. made the outcry statement to Hilda immediately upon being
picked up at appellant's home.  There is no testimony remotely indicating that M.V. even
saw her father until later the same day.  Based upon this testimony, we cannot say the trial
court abused its discretion in allowing the testimony regarding the outcry statement before
the jury.  Weatherred, 15 S.W.3d at 542.  Appellant's issue regarding the outcry statement
is overruled. 
Motion for mistrial

	Appellant contends that the court erred in denying a motion for mistrial urged during
the cross-examination of Hilda.  The granting or denying of a mistrial is within the discretion
of the court.  See Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000). A court
abuses its discretion when its action or decision is not within the zone of reasonable
disagreement.  Montgomery, 810 S.W.2d at 391.    Mistrial is a device used to halt trial
proceedings when error is so prejudicial that expenditure of further time and expense would
be wasteful and futile. See Wood, 18 S.W.3d at 648.  A court may properly exercise its
discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of
conviction could be reached but would have to be reversed on appeal due to an obvious
procedural error. Id. The determination of whether a given error necessitates a mistrial
must be made by examining the particular facts of the case. Id.
	During the cross-examination of Hilda, appellant asked if Hilda had discussed the
case with anyone at her job.  The State objected and requested the opportunity to
approach the bench.  Before the State was able to approach the bench, appellant stated
that if the State had an objection to make it.  The State then stated, "I say at this point the
Respondent's attorney is trying to conduct an investigation that should have been done
pretrial."  Appellant objected to the statement and requested the court order the jury to
disregard.  The court sustained the objection and instructed the jury to disregard the
statement.  Citing this court to McMurrough, appellant claims that this statement inflamed
the minds of the jury to his detriment necessitating a mistrial.  McMurrough v. State, 995
S.W.2d 944, 947 (Tex.App.- Fort Worth 1999, no pet.)  McMurrough involved comments
made by the prosecutor during closing argument that were outside the record.  As the
appellate court pointed out, the comments of the prosecutor suggested that appellant's
counsel had manufactured a defense and, as such, are among the most egregious types
of error.  Id.  However, the statement before us does not rise to that level.  At most, the
State made a speaking objection that went to the tenor of the cross-examination of Hilda. 
This court does not approve of the comments, but we cannot say that the harm was such
that the subsequent instruction to disregard was not sufficient.  Ovalle v. State, 13 S.W.3d
774, 783-84 (Tex.Crim.App. 2000).  When matters are injected into the trial that have no
perceived relevance and are potentially prejudicial to the appellant, appellate courts
presume that an instruction to disregard the evidence will be obeyed by the jury.  See
Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App. 1987).  The exception to the above
statement is in those situations where it appears that the matter injected is clearly
calculated to inflame the minds of the jury and is of such a character as to suggest the
impossibility of withdrawing the impression produced on their minds.  Id.  After a review of
the totality of the situation, we cannot say that the court abused its discretion in overruling
appellant's motion for mistrial, therefore, appellant's issue is overruled.
Comment on the weight of the evidence

	Appellant next contends that the court made comments, during the course of the
trial, that were impermissible comments on the weight of the evidence.  Appellant cites
three separate comments of the court and posits that the cumulative effect of these
comments is to deny appellant a fair trial.  The first comment involved the cross-examination of Hilda, inquiring into when she first took M.V. to see a doctor or nurse. 
When Hilda testified that she did not remember the date, appellant attempted to refresh her
memory with some "papers" from the exam.  However, the State offered to stipulate to the
date, "if that will move things along."  To which the court stated, "Thank you, it will."  The
second comment occurred during the court's instructions to the jury as they were dismissed
for the day.  After an unrelated objection by the State and a reply by appellant's attorney,
the trial court stated, "I've got another problem too, and I've got a court reporter who needs
to leave at 5:15.  I hate to break a witness' testimony, I really do, but it does not look like
this is going to conclude any time real, real fast, and I am going to recess until tomorrow
morning at 8:30."  Finally, appellant contends that the court's comment that counsel was
to use a reasonable amount of time in closing argument was a comment on the weight of
the evidence.  The record reveals that this third comment came after the State requested
a reasonable limit on appellant's closing argument toward the end of the argument and
after appellant had argued the same issues repeatedly.  
	The first comment complained of had nothing to do with the evidence or its weight. 
The trial court simply agreed that a stipulation as to the date of the initial exam, which was
the same date appellant was seeking to elicit from the witness, would move the matter
along.  The second comment complained of was not in any way directed to anything other
than explaining to the jury and the parties why the witness's testimony would be broken up
by an evening recess.  Finally, the third comment appears to have been the court's ruling
on an objection by the State that appellant's argument was repetitive.  All of these alleged
comments have one thing in common, they appear to be an effort by the trial court to
maintain control of the litigation and to expedite the trial of the case.  We show great
deference to the trial court in these matters. Jasper v. State, 61 S.W.3d 413, 421
(Tex.Crim.App. 2001).  
	Additionally, as admitted by appellant, there was no objection to any of the alleged
comments at the time they were made.  We, therefore, will review them from the
perspective of fundamental error.  Blue v. State, 41 S.W.3d 129, 131 (Tex.Crim.App.
2000). (7)  When the comments are thus reviewed, it is apparent that the court's allegedly
improper comments do not rise to the level of the comments made in Blue.  In Blue, the trial
court stated to the jury panel that he would have preferred that the defendant pled guilty
rather than go to trial.  Id. at 130.  This comment struck directly at the presumption of
innocence of the defendant.  None of the comments appellant now complains of,
individually or collectively, rise to the level of fundamental error.  As such, timely objection
was required to preserve error.  Rule 33.1(a)(1)(A).   Appellant's issue is overruled.
Extraneous offense

 Appellant next contends that the trial court erred in allowing the admission of
evidence of extraneous offenses before the jury.  The record shows that the State filed a
notice of intent to use evidence of other crimes and that the trial court held a hearing
outside the presence of the jury on the issue before any such testimony was admitted. 
During this hearing, Hilda, M.V.'s mother, testified that M.V. had told her that appellant had
touched her on more than one occasion.  The trial court ruled that the testimony could
come in with a limiting instruction as to the purposes for which it could be used.  However,
the record reflects that Hilda was never questioned about the statement from M.V. in front
of the jury.  Subsequently, witness Delawater testified that, during her examination of M.V.,
M.V. stated that appellant touched her "like he did before."  
	The admission of evidence is reviewed under an abuse of discretion standard.  See
Weatherred, 15 S.W.3d at 542; Green, 934 S.W.2d at 101-02; Montgomery, 810 S.W.2d
at 390.  A reviewing court should not reverse a trial judge's decision whose ruling was
within the zone of reasonable disagreement.  Green, 934 S.W.2d at 102.
	Article 38.37 of the Texas Code of Criminal Procedure sets the parameters for the
admission of evidence of other wrongs, crimes or acts committed by a defendant against
a child victim.  Tex. Code Crim. Proc. Ann. art. 38.37 (Vernon Supp. 2005).  The Texas
Family Code specifically allows the use of evidence in accordance with Chapter 38 of the
Texas Code of Criminal Procedure in the adjudication phase of a juvenile case.  § 54.03(d). 
Pursuant to article 38.37, evidence that bears on relevant matters, including (1) the state
of mind of the defendant and the child, and (2) the previous and subsequent relationship
between the defendant and the child, is admissible.  Tex. Code Crim. Proc. Ann. art
38.37(2)(1)-(2) (Vernon Supp. 2005).  
	At the hearing, held outside of the jury's presence, to determine the admissibility of
this evidence, the State offered the evidence as highly probative of both appellant's intent
to engage in the offense of indecency and the state of mind of both appellant and M.V.  We
note that the issue of appellant's intent to commit the offense of indecency was hotly
contested throughout the trial.  Additionally, on appeal, this same issue is the basis of
appellant's contention that the evidence was factually and legally insufficient.  Finally,
appellant offered testimony that M.V. had hurt herself when she tripped over a scooter as
a contradictory explanation for why M.V. was upset when her mother picked her up.
	The evidence of appellant's touching M.V. "like he did before" clearly goes to the
intent of appellant and to the state of mind of both appellant and M.V. and is admissible.
Ernst v. State, 971 S.W.2d 698, 700 (Tex.App.-Austin 1998, no pet.).  Under the facts
before the trial court, we cannot say that the admission of this evidence was an abuse of
discretion.   Weatherred, 15 S.W.3d at 542.  Appellant's issue is overruled.

Factual and legal sufficiency

	Appellant next urges that the evidence was factually and legally insufficient to prove
the element that appellant intended to arouse and gratify his sexual desire.  Factual and
legal sufficiency challenges in a juvenile case are governed by the criminal standard of
proof.  § 54.03(f); In re B.S.S., No. 03-04-00215-CV, 2006 Tex. App. LEXIS 1682, at *2
(Tex.App.-Ausitn 2006, no pet. h.); In re D.J.H., 186 S.W.3d 163, 164 (Tex.App.-Fort
Worth 2006, pet. filed).  When both legal and factual sufficiency are challenged by an
appellant, the court must conduct the legal sufficiency review first.  Clewis v. State, 922
S.W.2d 126, 133 (Tex.Crim.App. 1996).  One cannot be convicted of a crime unless it is
shown, beyond a reasonable doubt, that he committed each element of the alleged offense. 
U.S. Const. amend. XIV; Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 2004).
 A legal sufficiency review consists of reviewing the evidence in the light most
favorable to the prosecution to determine whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443
U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Burden v. State, 55 S.W.3d 608, 612
(Tex.Crim.App. 2001).  This standard is the same in both direct and circumstantial evidence
cases.  Burden, 55 S.W.3d at 613.  All the evidence presented to the jury must be
considered, whether properly or improperly admitted, to assess the factual findings from
the jury's perspective.  See Miles v. State, 918 S.W.2d 511, 512 (Tex.Crim.App. 1996).  As
an appellate court, we may not sit as a thirteenth juror, but must uphold the jury's verdict
unless it is irrational or unsupported by more than a "mere modicum" of evidence.  See
Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988).  We resolve inconsistencies
in the evidence in favor of the verdict.  Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.
2000).
 When an appellant challenges the factual sufficiency of his conviction, the reviewing
court must ultimately determine whether, considering all the evidence in a neutral light, the
jury was rationally justified in finding the defendant guilty beyond a reasonable doubt.  See
Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004).  There are two ways in which
the evidence may be insufficient.  First, when considered by itself, evidence supporting the
verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. 
Second, considering all of the evidence, both for and against the verdict, the contrary
evidence may be so strong that the beyond-a-reasonable-doubt standard could not have
been met. Id. at 484-85.  If we conclude that the evidence was factually sufficient to support
the conviction, we must address appellant's main argument and explain why we are not
persuaded by it.  Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003)
	When conducting a legal sufficiency review, we must review the total record, which
we have done throughout this opinion.  Relying upon that review, we find that the State was
required to prove the elements of indecency with a child: that is, (1) that appellant, (2) with
intent to gratify his sexual desire, (3) intentionally or knowingly engaged in sexual contact
with M.V. by touching the genitals of M.V., (4) a child younger than 17 and not the spouse
of appellant.  See Tex. Pen. Code Ann. § 21.11 (Vernon 2005).  The State must further
prove that the touching was of the nature prohibited by the statute.  The record affirmatively
demonstrates proof of appellant's identification, the age of M.V., and that she was not the
spouse of appellant.  As to the touching, the record contains testimony that appellant
placed his hand on the genitals of M.V. and placed his genitals against M.V.  The contested
issue was that of appellant's intent to gratify his sexual desire.  
	The intent to gratify the sexual desire of appellant may be inferred by the act itself,
by appellant's conduct or remarks, or by the surrounding circumstances.  See McKenzie
v. State, 617 S.W.2d 211, 216 (Tex.Crim.App. 1981), Couchman v. State, 3 S.W.3d 155,
163 (Tex.App.-Fort Worth 1999, pet. ref'd).  It was appellant's conduct in trying to hurry
Hilda and M.V. from the house that originally aroused Hilda's suspicion.  M.V. testified
clearly as to what appellant had done to her.  Finally, Delawater's testimony related that
M.V. alleged that appellant touched her "like he had done before."  From a review of this
record, it cannot be said that no rational jury could have found the elements of indecency
with a child, including the intent to gratify sexual desires element, against appellant beyond
a reasonable doubt. Appellant's legal sufficiency is overruled.
	Our review of the record also convinces us that, when the evidence is reviewed in
a neutral light, the jury was rationally justified in finding appellant guilty beyond a
reasonable doubt.  Zuniga, 144 S.W.3d at 484.  Appellant argues that his explanation that
M.V. cried because she fell over a scooter demonstrates the factual insufficiency of the
evidence on the element of his intent.  The testimony regarding whether M.V. fell over the
scooter was contested.  The State introduced the testimony of Delawater that appellant had
touched M.V. before to prove this element.  It was for the jury to resolve the conflicts in this
evidence and to determine which testimony was believable.  See Johnson v. State, 23
S.W.3d 1,8 (Tex.Crim.App. 2000).  A reviewing court is able to disagree with the factual
determination of a jury, but only in limited circumstances, and the court should be
appropriately deferential to the jury's determination as to the weight of evidence and the
credibility of witnesses.  Id. at 8-9.  We cannot say, based upon a neutral review of this
record, that the evidence is so weak that the jury was not rationally justified in finding the
appellant guilty beyond a reasonable doubt.   Zuniga, 144 S.W.3d at 484.  Neither can we
say that, considering all of the evidence, both for and against the verdict, the contrary
evidence is so strong that the beyond-a-reasonable-doubt standard could not have been
met.  Id. at 484-85.  Therefore, appellant's factual sufficiency issue is overruled.
Amended motion for new trial

	Appellant next complains of the action of the court in limiting the testimony at the
motion for new trial hearing to the issues raised in the original motion for new trial.  The
issue of the alleged limitation that the trial court placed on the evidence produced at the
motion for new trial is separate from the ruling on the motion and will be treated distinctly. 
The jury rendered a verdict of true against appellant on March 31, 2005.  On April 27, 2005,
appellant filed a motion for new trial.  The hearing on the motion for new trial began on May
27, 2005.  At the beginning of the hearing, appellant requested leave to file an amended
motion for new trial.  The amended motion for new trial sought to raise the issue of newly
discovered evidence for the first time.  The State objected and the court initially ruled that
appellant could file the amended motion for new trial.  When the hearing resumed at a later
date, the State reurged its objection to the amended motion for new trial.  The court
reversed its original decision and denied appellant the right to amend the motion for new
trial.  After ruling that the amended motion was not timely filed, the court limited the
testimony to evidence in support of the original motion for new trial.  It is from this ruling
that appellant complains.
	 The right to move for a new trial in a criminal case is purely statutory.  Drew v. State,
743 S.W.2d 207, 223 (Tex.Crim.App. 1987).  Currently, Texas Rule of Appellate Procedure
21 governs the new trial practice in Texas.  Rule 21.  Rule  21.4(a) provides that a motion
for new trial must be filed "not later than 30 days after, the date when the trial court imposes
or suspends sentence."  Rule 21.4(a).  Rule 21.4(b) provides that an amended motion for
new trial may be filed "within 30 days after the date when the trial court imposes or
suspends sentence in open court but before the court overrules any preceding motion for
new trial. . . ."  Rule 21.4(b).  The rules, when read together, mean that any amendments
to the motion for new trial must be completed within the same 30-day time period.  State v.
Lewis, 151 S.W.3d 213, 219 (Tex.App.-Tyler 2004, pet. ref'd).
	The statutory provisions for filing motions for new trial and amended motions for new
trial are mandatory and must be complied with in all respects.  Id. at 218 (citing  Drew, 743
S.W.2d at 223).  The fact that the amended motion for new trial is based on newly
discovered evidence has no impact upon the appellate timetable.  Licon v. State, 99 S.W.3d
918, 926 (Tex.App.-El Paso 2003, no pet.).  Failure to adhere to the timetable in the rules
leaves the court without jurisdiction.  Id.   Because an untimely filed amended motion for
new trial leaves the court without jurisdiction, the evidence presented in support of the
untimely amended motion for new trial may not be considered by the court.  Id.   Appellant's
tenth issue is overruled. 
Denial of motion for new trial

 The granting or denying of a motion for new trial is within the discretion of the trial
court.  See Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999); State v. Gonzalez, 855
S.W.2d 692, 696 (Tex.Crim.App. 1993).  In reviewing the trial court's decision, our standard
of review is whether the trial court abused its discretion.  Id.; Brown v. State, 960 S.W.2d
772, 778 (Tex.App.-Dallas 1997, pet. ref'd).  A trial court abuses its discretion when its
action or decision is not within the zone of reasonable disagreement.  See Montgomery, 810
S.W.2d at 391.  A trial judge's ruling on a motion for new trial is presumed to be correct. 
See Lee v. State, 167 Tex.Crim. 608, 322 S.W.2d 260, 262 (1958).  
 All of appellant's issues in the original motion for new trial have been previously
addressed and overruled, except for two.  One of these addresses an issue arising during
voir dire and the other alleges that a juror slept during the trial proceedings.  As to the issues
previously addressed in this opinion, we cannot say that the trial court abused its discretion
in denying appellant a new trial.  Ladd, 3 S.W.3d at 567.  As to the other two issues,
appellant has not identified any record evidence to support these allegations.  Neither has
appellant specifically addressed the contentions in his appellate brief.  These issues are
inadequately briefed and are, therefore, waived.  Rule 38.1.  See Hankins v. State, 132
S.W.3d 380, 385 (Tex.Crim.App. 2004).  Accordingly, appellant's final issue is overruled.
Conclusion

	Having overruled appellant's issues, the judgment of the trial court is affirmed.

							Mackey K. Hancock
							         Justice






1.  Further references to Texas Rules of Appellate Procedure will be by reference to
Rule _____.  
2.  § 301.002, in part, states, "The term [Professional nursing] does not include acts
of medical diagnosis or prescription of therapeutic or corrective measures."
3.  Originally passed as Acts of 1999, 76th Leg., R.S., ch. 388, 1999 Tex. Gen. Laws
1669, eff. Sept. 1, 1999.
4.  Further reference to sections of the Texas Family Code will be by reference to "§
__."
5.  The requirements for admissibility of outcry statement pursuant to Texas Code of
Criminal Procedure, article 38.072, are identical to those contained within § 54.031.
6.  "Colita" is a term M.V. used to describe genitalia. 
7.  For purposes of this opinion, we do not need to discuss the precedential value of
the plurality opinion in Blue. 

