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                                   MEMORANDUM OPINION

                                          No. 04-07-00795-CR

                                         Virgilio C. SANCHEZ,
                                                Appellant

                                                     v.

                                          The STATE of Texas,
                                                Appellee

                      From the 186th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2007-CR-4690
                            Honorable Maria Teresa Herr, Judge Presiding

Opinion by:       Catherine Stone, Justice

Sitting:          Catherine Stone, Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: December 10, 2008

AFFIRMED

           Virgilio C. Sanchez appeals his convictions on two counts of sexual assault of a child. In two

issues, Sanchez claims the evidence is factually insufficient to support the second count of sexual

assault of a child, and the trial court reversibly erred in instructing the jury. We affirm the trial

court’s judgments.
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                                          BACKGROUND

        On February 15, 2005, fifteen year old M.C. discovered she was nine months pregnant. M.C.

told her mother that Sanchez, her mother’s common law husband and her step-father, had sexually

assaulted her. On February 19, 2005, M.C. gave birth to a baby, and hospital records indicate that

the gestational age of the placenta was “thirty-four plus weeks.”

        Pursuant to a search warrant, the police obtained a buccal swab from Sanchez for purposes

of paternity testing. The swabs were submitted to the Bexar County Criminal Investigation Lab for

testing. The results of the paternity testing showed that Sanchez had a 99.99% probability of being

the father.

        Sanchez was indicted on two counts of sexual assault. The first count was for aggravated

sexual assault of a child under the age of fourteen, and the second count was for sexual assault of

a child under the age of seventeen, who was not the defendant’s spouse. Following a jury trial,

Sanchez was found guilty on both counts and sentenced to ninety-nine years imprisonment and a

$10,000 fine for count one and twenty years imprisonment and a $10,000 fine for count two.

                                     FACTUAL SUFFICIENCY

        In his first point, Sanchez contends M.C.’s testimony and the evidence presented at trial is

factually insufficient to support the second count of sexual assault with a child under the age of

seventeen, who was not his wife. According to Sanchez, the indictment alleged the offense occurred

on or about May 22, 2004, and the State elected to further limit the time frame by asserting that the

offense did not occur beyond May 22, 2004. Sanchez contends M.C.’s testimony and the gestational

age of the placenta establishes that the offense occurred prior to May 22, 2004, and therefore, the

evidence is factually insufficient to support a conviction as to count two. Sanchez argues that

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affirming the trial court’s verdict would approve the use of the phrase “on or about” in an indictment

to include a date not proven by the evidence. Sanchez also contends the accuracy of the DNA test

is questionable, and consequently, any statistical analysis regarding the results would lead to an

equally questionable conclusion of paternity.

       We review the factual sufficiency of the evidence by carefully considering all of the evidence

in a neutral light and asking whether the jury was rationally justified in finding guilt beyond a

reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Under a

factual sufficiency review, we reverse only if: (1) the evidence is so weak that it makes the verdict

clearly wrong or manifestly unjust; or (2) the verdict goes against the great weight and

preponderance of the evidence. See id. at 414-15 (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex.

Crim. App. 2000)). Although we analyze all of the evidence presented at trial, the trier of fact is the

sole judge of the credibility of the witnesses and the weight given to their testimony, and we afford

“due deference” to the jury’s determinations. See Marshall v. State, 210 S.W.3d 618, 625 (Tex.

Crim. App. 2006). We may review credibility and weight determinations only “to a very limited

degree.” See id.

       To determine if evidence is so weak as to make a verdict clearly wrong or manifestly unjust,

we must determine that the jury’s finding “shocks the conscience” or “clearly demonstrates bias.”

See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997) (citing Clewis v. State, 922

S.W.2d 126, 135 (Tex. Crim. App. 1996)); Meraz v. State, 785 S.W.2d 146, 149 (Tex. Crim. App.

1990)). We may not conclude that a conviction is clearly wrong or manifestly unjust merely because

we simply disagree with the jury’s resolution of the evidence and would have acquitted the

defendant. See Watson, 204. S.W.3d at 417.


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       A defendant commits sexual assault of a child if he intentionally or knowingly causes the

sexual organ of a child to contact or penetrate the sexual organ of a person, and the child is a person

younger than seventeen years of age at the time of the offense and is not the adult’s spouse. TEX

PEN . CODE. ANN . § 22.011(a)(2)(C), (c)(1) (Vernon Supp. 2008). A child victim’s testimony alone

is sufficient to support a conviction for aggravated sexual assault. TEX . CODE CRIM . PROC. ANN . art.

38.07 (Vernon 2005). When an indictment alleges a crime occurred “on or about” a particular date,

the State may prove the offense “with a date other than the [date] specifically alleged [in the

indictment] so long as the date is anterior to the presentment of the indictment and within the

statutory limitation period and the offense relied upon otherwise meets the description of the offense

contained in the indictment.” Yzaguirre v. State, 957 S.W.2d 38, 39 (Tex. Crim. App. 1997) (relying

on Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997)). The primary purpose of the “on

or about” language “is not to notify the accused of the date of the offense[,]” but instead to show the

prosecution that the offense is not barred by the statute of limitations and to provide the defendant

with sufficient notice to prepare an adequate defense. Garcia v. State, 981 S.W.2d 683 (Tex. Crim.

App. 1998).

A. Date of Offense

       The indictment in this case was presented on May 30, 2007. The indictment alleged that

Sanchez, on or about May 22, 2004, intentionally and knowingly caused penetration of M.C.’s sexual

organ with his sexual organ and that M.C. was a child younger than seventeen years of age who was

not Sanchez’s spouse. M.C. testified that Sanchez began sexually assaulting her at age eleven or

twelve and stopped shortly before her fifteenth birthday party on May 22, 2004. M.C. further




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testified that the last time Sanchez sexually assaulted her was a week before her fifteenth birthday

party and that Sanchez ejaculated inside of her vagina.

       Although the indictment alleges sexual conduct occurred on or about May 22, 2004 and the

evidence establishes sexual conduct may have stopped before May 22, 2004, the State provided

sufficient evidence to establish that the offense occurred on dates anterior to the presentment of the

indictment and within the statutory limitation period. See Yzaguirre, 957 S.W.2d at 39. After

reviewing all the evidence in a neutral light and giving due deference to the jury’s assessment of the

credibility of the witnesses and weight of the evidence, we hold it was reasonable for the jury to

believe beyond a reasonable doubt that M.C. was sexually abused by Sanchez between the ages

twelve and almost fifteen. See Watson, 204 S.W.3d at 414-15.

       We disagree with Sanchez’s argument that the State elected to limit the time frame of the

offense to sexual conduct occurring before May 22, 2004. An election occurs when the defense

requests the State to designate the evidence it intends to rely upon to support a conviction as to each

count. Hendrix v. State, 150 S.W.3d 839, 852 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d)

(“When evidence shows two or more acts of sexual assault, each of which is an offense for which

the defendant may be convicted, and the indictment charges only one offense, if the accused makes

a motion for election, the State is required to elect which act it will rely upon to secure a

conviction.”). Here, the burden was on Sanchez to request the State to specify which occurrence the

State would be relying upon to support a conviction as to count two. See id. The record reveals that

Sanchez did not make such a request. Because Sanchez did not request the State to elect which

separate occurrence it would be relying upon for a conviction as to count two, Sanchez waived this

argument. See id. As a result, the State was allowed to prove the offense with a date other than the


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one specifically alleged in the indictment so long as the date was anterior to the presentment of the

indictment. See id.; Yzaguirre, 957 S.W.2d at 39.

B. DNA Test Results

       Regarding the accuracy of the DNA test results, the Bexar County Criminal Investigation Lab

ran the baby’s DNA with positive and negative controls in accordance with lab protocol. The first

run was poorly injected, and a second run was conducted without new controls. At trial, Sanchez’s

expert witness on genetics, Dr. Paul Goldstein, testified that he questioned the accuracy of the

paternity test after reviewing the results obtained from the DNA statistical analysis. Dr. Goldstein

opined that the forensic scientist who conducted the DNA statistical analysis did not follow the

standard operating procedure because the forensic scientist did not apply the appropriate controls to

the second injection performed.

       The State’s forensic scientist, Erin Reat, testified that it was unnecessary to apply the controls

to the second injection because the controls were working properly as evidenced by the fact that the

machine, which collects the DNA data from a sample, caught the poor first injection. Furthermore,

Garon Foster, the technical supervisor of the Bexar County Lab, testified that he reviewed the raw

data and independently concluded the test was accurate. The jury was the sole judge of the

credibility and weight given to Dr. Goldstein’s testimony; therefore, we must give due deference to

the jury’s decision to reject Dr. Goldstein’s testimony in favor of the testimony of Reat and Foster.

See Marshall v. State, 210 S.W.3d at 625.

       Viewing all the evidence neutrally, including the time frame of the sexual conduct and

conflicting accounts concerning the accuracy of the DNA statistical analysis, we conclude that the

evidence supporting the verdict is not so weak as to make the finding of guilt clearly wrong or

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manifestly unjust and that the verdict is not against the great weight and preponderance of the

available evidence. See Watson, 204 S.W.3d at 414-15. Accordingly, Sanchez’s first point is

overruled.

                                            JURY CHARGE

        In his second point, Sanchez contends the trial court reversibly erred in instructing the jury

to find that the offense occurred on or before May 30, 2007.

        A jury charge error is reviewed under the standard set forth in Almanza v. State, 686 S.W.2d

157 (Tex. Crim. App. 1985). Under Almanza, we must first determine whether error exists in the

jury charge. See id. at 171. Second, we must determine whether sufficient harm was caused by the

error to require reversal. Id.; see also Airline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986).

The degree of harm necessary for reversal depends upon whether the error was preserved. Id. If the

error is properly preserved by an objection to the charge, then a showing of only some harm is

sufficient to require reversal; on the other hand, if the error is not properly preserved by an objection

to the charge, then a showing of egregious harm is necessary to require reversal. Id. An error which

results in egregious harm is an error that affects “the very basis of the case,” deprives the defendant

of a “valuable right,” or “virtually affect[s] a defensive theory.” Almanza, 686 S.W.2d at 172; see

also Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).

        During the charge conference, Sanchez contends he raised the issue concerning whether the

jury could consider dates beyond May 22, 2004 to convict Sanchez as to count two. According to

Sanchez, the State presented evidence of sexual abuse only up to May 22, 2004, therefore, the jury

charge should not include dates beyond May 22, 2004. However, the jury charge instructed the jury

that “the time frame of the offense mentioned must be some date anterior to the presentment of the

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indictment, and not so remote that the prosecution of the offense is barred by limitation.” The

indictment was presented on May 30, 2007. According to Sanchez, he properly objected to the jury

charge, and the court reversibly erred by overruling his objection.

        Regardless of whether Sanchez properly objected to the charge, he must show that error

exists in the charge. See Almanza, 686 S.W.2d at 171. However, the record does not establish error

in the jury charge. While the indictment alleges the sexual assault conduct occurred “on or about”

May 22, 2004, the State could prove the offense “with a date other than the [date] specifically alleged

[in the indictment] so long as the date is anterior to the presentment of the indictment and within the

statutory limitation period.” See Yzaguirre, 957 S.W.2d at 39. In this case, the charge properly

instructed the jury that it could consider activities up until the presentment of the indictment, which

was on May 30, 2007. While Sanchez contends the State elected to rely only on acts prior to May

22, 2004, as previously noted, a request for an election was never made by Sanchez. See Hendrix

v. State, 150 S.W.3d at 852. As a result, the charge properly instructed the jury that it could consider

any sexual acts occurring on dates anterior to the presentment of the indictment. See Yzaguirre, 957

S.W.2d at 39. Accordingly, we overrule Sanchez’s second point.

                                            CONCLUSION

       We determine that the evidence is factually sufficient to support the verdict. Additionally,

the trial court properly charged the jury. Accordingly, we affirm the trial court’s judgment.




                                                        Catherine Stone, Justice

Do not publish



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