                                        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



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         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.
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

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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

                                             3
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

                                            4
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.




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