AFFIRMED and Opinion Filed October 30, 2019




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-18-00843-CR

                           JOSE LEYVA SANTIBANEZ, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 2
                                   Dallas County, Texas
                            Trial Court Cause No. F-1875039-I

                             MEMORANDUM OPINION
                         Before Justices Bridges, Whitehill, and Schenck
                                   Opinion by Justice Bridges
       The State charged appellant Jose Leyva Santibanez with continuous sexual assault of a

child. The jury found him guilty of the lesser-included offense of aggravated sexual assault of a

child and sentenced him to thirty-five years’ confinement. On appeal, he challenges the sufficiency

of the evidence to support his conviction and the jury charge. We affirm the trial court’s judgment.

                                           Background

       Appellant and Mother met in 2016. Mother introduced appellant to her daughter (the

complainant), who was seven years old. The three spent a lot of time together before moving into

an apartment around September of 2017.

       Mother sometimes left complainant with appellant while she worked at the Courtyard by

Marriott. However, on January 8, 2018, complainant accompanied Mother to work. Two hotel
employees, both familiar with Mother and complainant, noticed complainant looked sad, which

was uncommon. Complainant usually happily talked to others and ran and jumped around the

break room while Mother worked.

       The women asked complainant why she looked sad and so tired, and complainant said she

did not sleep well. She then said she did not like appellant because he touched her, but she did not

provide any further information. The women did not remember the details of the conversation

because “everybody was nervous and sad and crying.”

       The women waited until Mother returned to the break room to tell her. Unsure how to

proceed with complainant’s abuse allegations, they approached the assistant general manager. He

called CPS to report the allegations and offered to house Mother and complainant at a sister

property because they were afraid to go home.

       The next day, the assistant general manager took Mother and complainant to the Children’s

Advocacy Center. Bernadette Martinez, a forensic interviewer with the Children’s Advocacy

Center, interviewed complainant on January 9, 2018. She was eight-years-old at that time. She

told Martinez appellant did things she did not like, which included him touching her breast and

vagina. She said it happened in the bedroom after Mother went to work. Every time it happened,

appellant told her not to tell anyone.

       The State indicted appellant for continuous sexual assault pursuant to penal code section

22.021(a)(1)(B)(i) for various sexual acts. The jury found appellant guilty of the lesser-included

offense of aggravated sexual assault under section 22.021(a)(1)(B)(i). This appeal followed.

                                    Sufficiency of the evidence

       In his first issue, appellant argues the evidence is insufficient to support his conviction

because the State failed to prove any particular time appellant committed aggravated sexual

assault, and complainant only testified in general terms about the allegations. The State admits

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complainant could not provide specific dates of the sexual abuse; however, she testified in detail

about the abuse and other witness testimony corroborated her allegations thereby providing

sufficient evidence to support his conviction.

       In determining the sufficiency of the evidence, the reviewing court considers the evidence

in the light most favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Acosta v. State, 429 S.W.3d

621, 624–25 (Tex. Crim. App. 2014). The jury is the sole judge of credibility and weight to attach

to witness testimony. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

       A person commits aggravated sexual assault of a child if a person intentionally or

knowingly causes the penetration of the female organ of a child by any means, and the child is

younger than fourteen years of age. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i). The

testimony of a child victim alone is sufficient to support a conviction. See TEX. CODE CRIM. PROC.

ANN. art. 38.07(a); Lee v. State, 186 S.W.3d 649, 655 (Tex. App.—Dallas 2006, pet. ref’d).

       A rational jury could have found the essential elements of the crime beyond a reasonable

doubt. Complainant’s testimony supports the charge in the indictment, which tracked the statutory

language of the penal code. See TEX. PENAL CODE ANN. § 22.021(a)(1). She described what

appellant wore during the touching, how he touched her, and where in the bedroom it occurred.

Her description of what happened did not need to be precise, and she was not expected to express

herself at the same level of sophistication as an adult. See Soto v. State, 267 S.W.3d 327, 332 (Tex.

App.—Corpus Christi 2008, no pet.). “As long as a child communicates to the factfinder that the

touching occurred on a part of the body within the definition of the statute, the evidence is

sufficient.” Jones v. State, 428 S.W.3d 163, 169 (Tex. App.—Houston [1st Dist.] 2014, no pet.);

see also Lee, 186 S.W.3d at 655 (child testimony alone is sufficient to support conviction).




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       In addition to complainant’s testimony, the jury heard from Martinez, who said

complainant described the abuse during the forensic interview. To the extent complainant gave

conflicting testimony and repeatedly testified she could not remember certain details, the jury

assessed her credibility and found in favor of the State. See Jackson, 443 U.S. at 319.

       Appellant further challenges complainant’s inability to provide temporal specificity of the

sexual abuse. Nevertheless, appellant acknowledges the State is not required to allege a specific

date in the indictment. See Sledge v. State, 953 S.W.2d 253, 255 (Tex. Crim. App. 1997) (en

banc.). It is well-settled the “on or about” language of an indictment allows the State to prove a

date other than the one alleged in the indictment as long as the date is anterior to the presentment

of the indictment and within the statutory limitation period. Id. at 256. Here, the indictment

alleged appellant committed the sexual act “on or about the 19th day of November, 2017.” The

presentment date was February 15, 2018. There is no statute of limitations for aggravated sexual

assault of a child. See TEX. CODE CRIM. PROC. ANN. art. 12.01(1)(B). Therefore, the State was

required to prove the sexual act occurred before February 15, 2018.

       Martinez explained to the jury that children struggle to pinpoint exact dates. Instead of

asking date and time questions, she sometimes uses holidays, such as Halloween, Thanksgiving,

and Christmas to find out if the abuse happened before or after a holiday.

       During the forensic interview, complainant said appellant touched her during Christmas

break and before Halloween. Complainant lived with appellant during this time, and Mother

recalled leaving complainant with appellant around October 31, 2017. Although complainant

could not provide specific incidents and dates, Martinez established a timeline by asking

complainant her age when the abuse started (she said seven) and ended (she said eight).

Complainant turned eight on December 12, 2017. The State asked Martinez, “So just to be clear,

that the time span that she gave you was some time before Halloween and sometime during the

                                                –4–
Christmas break?” and Martinez answered, “Correct.” Thus, viewed in the light most favorable to

the verdict, a rational jury could have found appellant abused complainant prior to presentment of

the indictment and within the statute of limitations.

       Our duty is to ensure the evidence presented supports a conclusion that appellant

committed aggravated sexual assault of a child. The record contains such evidence and “was not

a determination so outrageous that no rational trier of fact could agree.” Smith, 2019 WL 1615353,

at *7 (quoting Wirth v. State, 361 S.W.3d 694, 698 (Tex. Crim. App. 2012)). Appellant’s first

issue is overruled.

                                       Amended Indictment

       In his second issue, appellant argues the trial court erred by instructing the jury on a theory

of sexual abuse not alleged in the amended indictment, and he was egregiously harmed by the

jury’s consideration of the improperly included offense. The State responds it effectively amended

the indictment to include the offense of contact under section 22.021(a)(1)(B)(iv), but regardless,

error, if any, is harmless because the jury did not convict appellant of that offense.

       Assuming without deciding that the State’s amendment was not effective, appellant cannot

show harm by the jury charge’s inclusion of the section 22.021(a)(1)(B)(iv) allegation. Appellant

did not object to the charge at trial; therefore, reversal is required only if the alleged error caused

egregious harm. See Dolkart v. State, 197 S.W.3d 887, 893 (Tex. App.—Dallas 2006, pet. ref’d).

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.” Almanza v. State, 686 S.W.2d

157, 171 (Tex. Crim. App. 1985) (en banc). However, under this standard, the record must show

the defendant suffered actual, rather than merely theoretical, harm from jury charge error. See Ngo

v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005).




                                                 –5–
       Appellant asserts he suffered egregious harm because (1) the charge incorrectly left the

jury with the impression it could convict under section 22.021(a)(1)(B)(iv); (2) the State informed

the jury during voir dire that act was a part of its case for continuous sexual assault; (3) the State

referenced section 22.021(a)(1)(B)(iv) contact during closing; and (4) the State’s evidence

supporting section 22.021(a)(1)(B)(i) was weak. However, the jury did not find appellant guilty

of aggravated sexual assault of a child under section 22.021(a)(1)(B)(iv). Accordingly, appellant

failed to establish he suffered any actual, rather than merely theoretical, harm. “Egregious harm”

is a high and difficult standard to meet. See Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim.

App. 2015). Appellant has failed to meet this high standard. We overrule appellant’s second issue.

                                            Conclusion

       The judgment of the trial court is affirmed.




                                                    /David L. Bridges/
                                                    DAVID L. BRIDGES
                                                    JUSTICE




Do Not Publish
TEX. R. APP. P. 47.2(b)
180843f.u05




                                                 –6–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

 JOSE LEYVA SANTIBANEZ, Appellant                 On Appeal from the Criminal District Court
                                                  No. 2, Dallas County, Texas
 No. 05-18-00843-CR       V.                      Trial Court Cause No. F-1875039-I.
                                                  Opinion delivered by Justice Bridges.
 THE STATE OF TEXAS, Appellee                     Justices Whitehill and Schenck
                                                  participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered October 30, 2019




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