Affirmed and Opinion filed October 22, 2013.




                                            In The

                        Fourteenth Court of Appeals

                                    NO. 14-12-00711-CR

                           ALESTER D. HOGAN, Appellant
                                               V.

                           THE STATE OF TEXAS, Appellee

                       On Appeal from the 176th District Court
                               Harris County, Texas
                           Trial Court Cause No. 1344349

                                       OPINION
      A jury convicted appellant Alester D. Hogan of sexual assault and assessed
an enhanced sentence of confinement for 30 years. We affirm.

                                      BACKGROUND

      Complainant was 19 years old at the time of the offense, and she is
moderately mentally retarded.1 Complainant was leaving a gas station on the

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          At trial, Dr. Valorie King testified that complainant has an IQ of 53. A person with an
evening of June 23, 2010, when appellant approached her and offered her a ride
home. When complainant refused, appellant forced her into his truck; took her to
his house; and sexually assaulted her. After the assault, complainant went to a
nearby neighbor‟s house and requested that the neighbor call the police because
she had been sexually assaulted.             The police arrived and complainant was
transported to the hospital.

       Appellant called the police after complainant left, stating that he had given a
girl a ride to his house but had asked her to leave after she tried to have sex with
him. Appellant consented to a search of his house. Forensic evidence revealed
that DNA collected from the master bedroom was consistent with both
complainant and appellant. Further, DNA collected from complainant‟s breast
matched DNA of appellant. Appellant maintained that he did not have sexual
relations with complainant.

       Appellant was charged by indictment with the offense of sexual assault in
violation of Texas Penal Code § 22.011. See Tex. Penal Code Ann. § (Vernon
2011). During trial, the court developed concerns about complainant‟s ability to
testify and conducted a hearing to determine whether she was competent. After the
hearing and observing complainant on redirect examination, the court found that
she was competent to testify. The jury convicted appellant of sexual assault and
assessed punishment at 30 years‟ confinement. This appeal followed.

                                         ANALYSIS

       Appellant raises two issues on appeal. First, appellant contends that the trial
court erred in finding complainant legally competent to testify at trial. Second,
appellant argues that the jury charge was erroneous.


IQ below 70 is considered intellectually disabled. The average IQ of an adult is 100.

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I.    Competency

      In his first issue, appellant argues that complainant was not competent to
testify and that her testimony should have been excluded. Appellant contends that
complainant did not understand the questions addressed to her, had difficulty
communicating consistent intelligent answers, and did not understand the
difference between a truth and a lie.

      We review a trial court‟s competency determination for abuse of discretion.
Rodriguez v. State, 772 S.W.2d 167, 170 (Tex. App.—Houston [14th Dist.] 1989,
pet. ref‟d); Beavers v. State, 634 S.W.2d 893, 895 (Tex. App.—Houston [1st Dist.]
1982, pet. ref‟d). Further, in reviewing a trial court‟s competency ruling, we
consider the witness‟s entire testimony given both at trial before the jury and at the
competency hearing. See Hernandez v. State, 643 S.W.2d 397, 400 (Tex. Crim.
App. 1982).

      Generally, every person is presumed competent to testify. Tex. R. Evid.
601(a). A person is not competent to testify if, after an examination by the trial
court, the person does not appear “to possess sufficient intellect to relate
transactions with respect to which [she is] interrogated.” Tex. R. Evid. 601(a)(2).
The court will consider whether the witness possesses (1) the ability to intelligently
observe the events in question at the time of the occurrence, (2) the capacity to
recollect the events, and (3) the capacity to narrate the events. Rodriguez, 772
S.W.2d at 170 (citing Watson v. State, 596 S.W.2d 867, 870 (Tex. Crim. App.
1980).    The third element involves the ability to understand the moral
responsibility to tell the truth, to understand the questions posed, and to frame
intelligent answers. Id. (citing Watson, 596 S.W.2d at 870). If an intellectually
disabled person “possesses sufficient intelligence to receive correct impressions of
events [she] sees, retains clear recollection of them and is able to communicate

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them through some means there is no reason for rejecting [her] testimony.”
Watson v. State, 596 S.W.2d 867, 870-71 (Tex. Crim. App. 1980).     At trial,
complainant‟s testimony was occasionally nonresponsive and contradictory. On
cross-examination, the following exchange took place:

      DEFENSE COUNSEL: So, you—did—so, in that conversation you
      told the officer you left through the patio door, right?
      COMPLAINANT: Yes.
      DEFENSE COUNSEL: Again, why did you tell him that?
      COMPLAINANT: (No response)
      DEFENSE COUNSEL: Do you understand my question?
      COMPLAINANT: (No response)
      DEFENSE COUNSEL: My question was: Why did you tell him that?
      COMPLAINANT: I don‟t know.
      DEFENSE COUNSEL: You don‟t know?
      COMPLAINANT: (No response)
      DEFENSE COUNSEL: Do you tell people what you think they want
      to hear?
      COMPLAINANT: Yes.
      *                 *                  *
      DEFENSE COUNSEL: Were you worried about your mom being
      mad because you left the house that night?
      COMPLAINANT: No.
      DEFENSE COUNSEL: You weren‟t? Were you worried about your
      mom being mad because you‟d gone to some other man‟s house that
      night?
      COMPLAINANT: Yes.
      DEFENSE COUNSEL: And that‟s why you told the police, that‟s
      why you told your mom, that‟s why you told the prosecutors, and
      that‟s why you told the jury that you got raped, isn‟t it?
      COMPLAINANT: Yes.

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On redirect, complainant admitted that she typically answers “yes” to any question
when she becomes tired and no longer wants to talk to anyone. This exchange led
the trial court to examine complainant outside of the presence of the jury to
determine her competency.

      The competency examination testimony included the following exchange:

      COURT: Okay. Now, do you know the difference between telling a
      lie and telling the truth?
      COMPLAINANT: Yes.
      COURT: What is that difference?
      COMPLAINANT: A lie means—a lie means that, that it‟s not true.
      COURT: Okay. But what happens if you say something that‟s not
      true?
      COMPLAINANT: Then the person won‟t believe you.
      COURT: Uh-huh. What happens if you say something that‟s not true
      when you‟ve sworn an oath to come here in the courtroom and tell the
      truth?
      COMPLAINANT: That—that will get you in trouble.
      COURT: Yes. Okay. Well—so, for example—now you‟ve just told
      Mr. Justin that you told everyone that [appellant] raped you because
      you were afraid your mom was going to be mad at you for going to
      some man‟s house, didn‟t you?
      COMPLAINANT: Yes.
      COURT: Okay. Was that a true statement?
      COMPLAINANT: Yes.
      COURT: All right. So, are you telling us that everything you‟ve told
      them before about this man tying you to his bed and raping you was a
      lie?
      COMPLAINANT: No.
      COURT: Well, they can‟t both be true, ma‟am? Do you understand
      that?
      COMPLAINANT: Yes.

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COURT: Can you explain to me how both things could be true?
COMPLAINANT: That—that—that is true.
COURT: Okay. Which is true?
COMPLAINANT: That he—he raped me.
COURT: Okay. So, why did you just say what you said? About
making it up because you were afraid your mom would be mad at
you?
COMPLAINANT: I don‟t know.
COURT: Okay, ma‟am. So, can you see why I might be concerned?
COMPLAINANT: Yes.
COURT: Because you‟ve told me that you understand the importance
of telling the truth that you swore an oath to tell; but you‟re also
telling me that you‟re sitting here just saying, I guess, whatever comes
to your mind to say. Now, this is a very serious proceeding. A man‟s
life is on the line. This isn‟t a game. What do you think is going on
here today?
COMPLAINANT: That—that I have to tell the truth.
COURT: Well, what is this about? Why are you here?
COMPLAINANT: About what happened.
COURT: Okay. And when you—when you swore to God to tell the
truth, what did that mean to you?
COMPLAINANT: That he—that he knows that I‟m— I‟m going to
tell the truth.
COURT: Okay. But now you‟re telling me you haven‟t been telling
the truth, right?
COMPLAINANT: I wasn‟t lying.
COURT: Ma‟am, when you don‟t tell the truth, that‟s a lie. So, I don‟t
think you really seem to know what a lie is. You sat here under oath;
and you said, yes, I tell people whatever they think they want to hear.
Do you remember saying that just a few minutes ago?
COMPLAINANT: I don‟t know what I‟m saying.
COURT: Okay. Let‟s—so, let‟s get the—do you understand what
words mean?

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COMPLAINANT: No.
COURT: You don‟t understand what any words mean?
COMPLAINANT: No.
COURT: And so, when—when you say, I know to tell the truth, does
that statement have any meaning to you?
COMPLAINANT: No.
COURT: Okay. So, really, the—the idea of telling the truth is
meaningless to you. Is that what you‟re telling me?
COMPLAINANT: Yes.
COURT: And the idea of telling a lie means nothing to you, as well?
COMPLAINANT: Yes.
               *                   *                  *
PROSECUTION: Judge, every time I‟ve spoken with her, we‟ve gone
over this, I went over what I believe that the Defense attorney would
ask, and this is the first time that she has responded in this manner.
So, this is new.
COURT: Yes.
PROSECUTION: Right.
COURT: But this is what counts.
PROSECUTION: I understand. And what I believe is that she is
frustrated. I believe she understands and is just frustrated at the
moment. Because even speaking with her mom and the doctor and
even the police officer, she closes down when she gets frustrated. So,
I do think she understands between—
COURT: Okay.
PROSECUTION: —a lie and the truth, and I believe she understands
why she‟s here and what the importance of it is. I just think that she‟s
right now shutting down because—
COURT: Well—
PROSECUTION: —so many different people are asking you [sic] her
questions.
COURT: Well, and I‟m—I know she was prepared for that. But here‟s
the deal. Closing down is one thing. Making stuff up is something
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       different. And I don‟t care how tired she is. Then she needs to just say
       that, but she can‟t just say whatever comes to her mind to say.
       PROSECUTION: Right.
       COURT: I mean, because we‟ll just—for the next five days, we can
       have her on the stand; and it could go back and forth and back and
       forth and—obviously, she‟s going to say whatever. I guess at some
       point I‟ll call a halt to it and let the jury make a decision on what
       they‟ve heard. I don‟t know. Let‟s see how it goes, but I‟m going to
       hold this in abeyance as to whether I‟m going do let this go on or not.
       DEFENSE COUNSEL: I would ask the Court, for the record, to make
       a finding as to whether she‟s competent or not. I n my opinion,
       unfortunately, it‟s abundantly clear that—that she‟s not competent.
       COURT: I have reservations. I just said, though, I want to wait and
       get some more evidence. I want to see how this goes. If I decide that
       she‟s not competent—she‟s answered the boilerplate questions
       correctly, but I—I believe in going behind those, I agree; and she‟s
       not indicated to me—I think that, you know—I don‟t think you have
       to be a psychiatrist to figure this out. So, I want to see how she
       behaves on redirect; and you can have her on recross. And at the end
       of that, because that‟s going to be it, then I‟ll decide.
The next day, after observing complainant on redirect and considering the expert
testimony of a doctor, the trial court ruled that complainant was competent to
testify.

       The court reasoned that complainant‟s inconsistent testimony affected her
credibility, a matter within the province of the jury, not her competency. The court
cited Watson, concluding that complainant was not incompetent. See Watson, 596
S.W2d at 871-72 (court committed reversible error by allowing a witness to testify
who was unable to speak except for the expression “uh-huh” and could not be
interpreted rationally).

       We cannot say on this record that the trial court abused its discretion in
finding complainant competent to testify as a witness.          First, complainant‟s
testimony demonstrated that she possessed the ability to observe the events in
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question at the time of the occurrence and was capable of recollecting the events.
Although her responses were contradictory at times, complainant provided
sufficient detail about the events in question. She testified that appellant tied her to
his bed with sheets, and she told him to get off of her. She also stated that
“[appellant] put his penis inside my vagina.” She followed with the statement that
appellant hurt her, causing her to cry and bleed.

      Second, complainant‟s testimony demonstrated that she was capable of
narrating the events. Complainant understood the questions asked of her and was
able to frame intelligent answers. At trial, complainant was able to state her name
and age. She was able to answer questions about her family and the medication
she was taking. Complainant also demonstrated that she understood her moral
responsibility to tell the truth. She testified that she knew the difference between a
truth and a lie. She stated that “a lie means—a lie means that, it‟s not true.” When
the trial court questioned complainant as to what happens if a person says
something that is not true under oath, she responded “That—that will get you in
trouble.”

      Although some of complainant‟s responses were confusing and inconsistent,
a witness is not rendered incompetent merely because there are inconsistencies in
her testimony. Beavers, 634 S.W.2d at 897. Complainant‟s mental status did not
automatically render her incompetent to testify. See Allen v. State, 479 S.W.2d
278, 280 (Tex. Crim. App. 1972); see, e.g., Hernandez, 643 S.W.2d at 400-01 (a
24-year-old Spanish-speaking female enrolled in special education classes was
competent to testify in a murder trial despite the fact that the court‟s interpreter
was used and leading questions were allowed). Instead, it affected her credibility
and the weight of her testimony. See Allen, 479 S.W.2d at 280.



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      The trial court did not abuse its discretion in determining that complainant
was competent to testify. Appellant‟s first issue is overruled.

II.   Charge Error

      In his second issue, appellant argues that he was egregiously harmed by an
error in the jury charge based on the parole eligibility instruction. The State and
appellant agree that the trial court should have instructed the jury pursuant to Code
of Criminal Procedure Article 37.07, section 4(a), which provides, in relevant part,
appellant will not become eligible for parole until the actual time served equals
one-half of the sentence imposed or 30 years, whichever is less, without
consideration of any good conduct time he may earn. See Tex. Code Crim. Proc.
Ann. art. 37.07 § 4(a) (Vernon Supp. 2012). Instead, the instruction given by the
court erroneously stated that appellant would not become eligible for parole until
the actual time served plus any good conduct time earned equaled one-fourth of the
sentence imposed or 15 years, whichever is less. Appellant did not object to the
erroneous instruction.

      Even though the trial court erred in its instruction, we conclude that
appellant was not harmed by the alleged error. Because appellant failed to object
to the charge, reversal is required only if appellant was egregiously harmed. Rolle
v. State, 367 S.W.3d 746, 759 (Tex. App.—Houston [14th Dist.] 2012, pet. ref‟d)
(citing Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008)). To assess
the degree of harm resulting from jury charge error, we consider the factors laid
forth in Almanza, which include “the entire jury charge, the state of the evidence,
including the contested issues and weight of the probative evidence, the arguments
of counsel, and any other relevant information revealed by the record of the trial as
a whole.” Id. (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1984)). Appellant must have suffered actual, rather than theoretical, harm. Id.

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“Errors that result in egregious harm are those that affect „the very basis of the
case,‟ „deprive the defendant of a valuable right,‟ or „vitally affect a defensive
theory.‟” Id. (quoting Almanza, 686 S.W.2d at 172.).

      Although the jury charge erroneously described parole eligibility, a number
of factors mitigate against a finding of egregious harm. See Igo v. State, 210
S.W.3d 645, 647-48 (Tex. Crim. App. 2006) (erroneous description of parole
eligibility did not cause egregious harm even though the maximum sentence was
assessed because charge contained curative language; parole law was not
mentioned in closing argument; and evidence relating to punishment was
exceptionally strong).

      First, the parole instruction contained curative language admonishing the
jury not to consider the manner in which the parole law would be applied to
appellant. See id. Second, appellant was sentenced to 30 years‟ imprisonment; the
punishment range for the offense was a minimum of 25 years to a maximum of
life. See id.; see also Tex. Penal Code Ann. § 12.41(d) (Vernon 2011). Third,
parole was not mentioned by the prosecution during sentencing and was only
mentioned by the defense to explain that the jury is not to consider the manner in
which parole law might apply to appellant. See Igo, 210 at 647-48. Finally,
evidence presented during the punishment phase revealed the violent nature of
appellant‟s two prior felony convictions, theft and aggravated robbery. See id.

      After considering the above facts, we cannot conclude that the charge error
amounted to egregious harm. Appellant‟s second issue is overruled.




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                                    CONCLUSION

Having overruled each of appellant‟s issues, we affirm the trial court‟s judgment.


                                              /s/   William J. Boyce
                                                    Justice

Panel consists of Chief Justice Frost and Justices Boyce and Jamison.
Publish—Tex. R. App. P. 47.2(b).




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