                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-11-00053-CR


                     GERALDO CORRAL, A/K/A RODNEY SERNA,
                      A/K/A ALFRED HERNANDEZ, APPELLANT

                                            V.

                           THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 69th District Court
                                   Sherman County, Texas
                     Trial Court No. 878, Honorable Ron Enns, Presiding

                                    October 28, 2013

                            MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      Appellant Geraldo Corral a/k/a Rodney Serna a/k/a Alfred Hernandez appeals his

convictions and resulting sentences for aggravated sexual assault1 and indecency with

a child.2 Appellant was charged under a six-count indictment. Counts one through four

alleged he committed aggravated sexual assault of K.T., the daughter of his girlfriend


      1
          Tex. Penal Code Ann. § 22.021( (West Supp. 2013).
      2
          Tex. Penal Code Ann. § 21.11 (West 2011).
Gina Sanchez. Counts five and six alleged he committed indecency with a child toward

K.T. A jury found appellant guilty on counts one, four, five and six and not guilty on

counts two and three. The jury assessed punishment at eighteen years‟ confinement in

prison for counts one and four and five years‟ confinement for counts five and six. The

sentences run concurrently.         Through three issues alleging insufficiency of the

evidence, improper jury communication by the trial court, and abuse of discretion for not

granting a mistrial, appellant appeals. We will affirm.


                                         Background


       K.T. was born in October 1998. Appellant and Sanchez, K.T.‟s mother, began a

dating relationship in 2004. They lived together at times.


       In November 2004, appellant and Sanchez moved to Stratford, Texas.

Beginning in April 2005, K.T. lived with them in three different residences in Stratford.

One of the residences was a white house with red window frames3 on Poplar Street, in

which they lived from August 2005 through June 2006. K.T. referred to appellant as

“dad.” Others called him “Cholo.” In July 2006, the three moved to a house on South

Wall Street, where they were joined a few weeks later by Sanchez‟s teen-aged sons

“J.F.” and “T.”


       The relationship between appellant and Sanchez was volatile.            Appellant

described Sanchez as a “real jealous person.”             He moved out more than once,




       3
           The house is depicted in a color photograph, State‟s exhibit 2.



                                               2
sometimes on Sanchez‟s orders4 and other times on his own volition.                  One such

occasion occurred in July 2006, when, appellant testified, Sanchez ordered him out of

the house after K.T. told her appellant was “cheating on her” with K.T.‟s former

babysitter. Appellant said K.T. later admitted her story was a fabrication. Sanchez later

asked appellant to return to the home.


        The couple‟s relationship worsened after her sons moved in. Appellant moved

out for the last time in August or September 2006.          He testified he did so, “Because I

couldn‟t handle it no more, fight every day, you know, and all because of her kids

so . . . .” There also was evidence that appellant‟s moving out was related to Sanchez‟s

accusation he had an inappropriate relationship with a local sixteen-year-old female.


        A Stratford police officer testified Sanchez called him in October 2006 to report

that K.T. had told her appellant had “touched” her.5            Sanchez told the officer she

believed some of K.T.‟s allegations but not all of them. When the officer visited with

K.T., the child said appellant had touched her “chichis” and rubbed her below her “belly

button.”     She was interviewed by a counselor at the Bridge, a children‟s advocacy

center in Amarillo, giving her essentially the same report. Appellant was then arrested

and charged with indecency with a child. He was jailed on October 19 and remained in

jail until the time of trial.


        Two months later, on December 13, 2006, Sanchez again contacted Stratford

police, and reported K.T. was experiencing vaginal bleeding and had a rash. According

        4
            Appellant testified, “[S]he kicks me out if I don‟t do what she says.”

        5
        Other testimony showed the officer was acquainted with the family because of
previous domestic disturbances.


                                                 3
to this report from Sanchez, appellant‟s conduct toward K.T. had been far worse than

initially reported. She said he had penetrated K.T.‟s vagina with his penis and fingers

and placed his penis in her mouth. K.T. was taken to Amarillo for an examination by a

sexual assault nurse examiner (SANE) and back to the Bridge for another interview.

During the SANE examination, K.T. told the examining nurse that she was penetrated

anally by appellant. K.T.‟s written history was in evidence and read to the jury by the

SANE nurse.        It included allegations appellant penetrated the child‟s sexual organ,

mouth and “butt” with his penis, “put his mouth on my boobs,” and “made me put my

mouth on his private.” It also contained the statements, “Cholo did it last year when

school started, then he moved out then came back and started doing it again. He done

it a lot of times. He told me not to tell or he‟d kill my family. . . .”


          In addition, the history included K.T.‟s allegation a neighbor once “touched my

private.”


          The nurse examiner found no signs of trauma to the child‟s labia majora, labia

minora, or hymen. K.T. did not report bleeding and the nurse saw no indication of a

rash.


          According to appellant, K.T. had previously fabricated another allegation against

him. On that occasion, he testified, she fell from her bicycle and sustained a large

bruise on her hip. At school, she reported the bruise was the result of a spanking by

appellant. He said Child Protective Services investigated the matter and took no further

action.




                                                 4
       K.T. testified at trial. Asked if she ever had seen appellant‟s “private,” she told

the jury she did so in her “mom‟s room” at the “house with the red windows.” It looked

like a “stick” and emitted “gooey stuff.” She said on “many” other occasions at the

house with red windows, appellant touched her “boobs.”          “Probably more than ten

times” at the house with red windows appellant “put his private in [K.T.‟s] private,” and

“gooey stuff” went into her private. This “hurt” K.T., who said she was age seven at the

time. “[F]our or five” times appellant “put his finger into [her] private.” On one occasion

this occurred at the house with red windows. Appellant twice “put his private in [her]

mouth.” This once occurred in her “mom‟s” room at the house on South Wall Street.

Three times appellant “put his private in [her] butt.” One of these acts took place at the

house on South Wall Street. K.T. told the jury appellant said he would “hurt” her mother

if she told anyone of these events.


       K.T. also testified to the incident involving the neighbor. She said he “always”

gave her ice cream at his house. Once he touched her private. She said she reported

this to her teacher who responded, “„Oh, he‟s just playing.‟”


       K.T. further testified to sexual contact by her brother J.F. Once when K.T. was

sick and in her mother‟s bed, and appellant and Sanchez were not at home, J.F. lay in

bed with K.T. and touched her private.       J.F. once asked K.T. to “have sex.”      She

declined but told a counselor at the Bridge they “kind of” had sex. She could not recall

at trial what she meant by “kind of.” Later at trial she agreed that J.F. put his penis in

her mouth, in her “butt,” they “had sex,” and “that he put his private on [her] private,”

causing pain that made her cry. She testified Cholo did more “things” to her than J.F.




                                             5
       A relative of appellant testified K.T. told her that one night while appellant and

Sanchez slept, J.F. and T. touched her and it hurt “a lot.”


       Trial began on August 27, 2007, and the sentences were imposed on August 29,

2007. Appellant did not file a motion for new trial nor did he timely file a notice of

appeal.    However, he was granted an out-of-time appeal through habeas corpus

proceedings in the Court of Criminal Appeals.6 After appeal to this court was perfected,

the case was twice abated and remanded to the trial court for determination of

questions relating to appellant‟s representation by counsel on appeal.7 On the second

remand, the trial court appointed appellant‟s present counsel.


                                          Analysis


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

conviction under counts one, four, five and six.


       When deciding whether evidence is sufficient to support a conviction, we assess

all the evidence in the light most favorable to the verdict to determine whether any

rational trier of fact could find the essential elements of the crime beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In

applying the Jackson standard of review, “the relevant question is whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could


       6
        See Ex parte Corral, No. AP-76,459, 2010 Tex. Crim. App. Unpub. Lexis 694
(Tex.Crim.App. Nov. 24, 2010) (not designated for publication).
       7
         See Corral v. State, No. 07-11-00053-CR, 2011 Tex. App. Lexis 7598
(Tex.App.—Amarillo, Sept. 19, 2011) (per curiam order, not designated for publication);
Corral v. State, No. 07-11-00053-CR, 2012 Tex. App. Lexis 807 (Tex.App.—Amarillo,
Jan. 31, 2012) (per curiam order, not designated for publication).


                                             6
have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319

(emphasis in original). As the Court of Criminal Appeals has explained, the Jackson

standard accounts for the factfinder‟s duty “to resolve conflicts in the testimony, to weigh

the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”

Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007) (quoting Jackson, 443

U.S. at 319). Therefore, when the evidence would support conflicting inferences, we

must presume that the factfinder resolved the conflicts in favor of the prosecution and

must defer to that determination. Clayton, 235 S.W.3d at 778 (citing Jackson, 443 U.S.

at 319. The deference we are required to give a jury‟s verdict is perhaps most acute

when it depends on the jury‟s evaluation of the credibility of witnesses and the weight to

be given their testimony. See Brooks v. State, 323 S.W.3d 893, 894 (Tex.Crim.App.

2010) (plurality op.) (under Jackson standard, reviewing court is required to defer to

jury‟s credibility and weight determinations).


       The testimony of a child sexual abuse victim alone is sufficient to support a

conviction for indecency with a child or aggravated sexual assault. Soto v. State, 267

S.W.3d 327, 332 (Tex.App.—Corpus Christi 2008, no pet.).            The courts give wide

latitude to testimony given by child victims of sexual abuse.       Villalon v. State, 791

S.W.2d 130, 134 (Tex.Crim.App. 1990) (en banc). The victim‟s description of what

happened need not be precise, and the child is not expected to communicate with the

same level of sophistication as an adult. Soto, 267 S.W.3d at 332. Corroboration of the

victim‟s testimony by medical or physical evidence is not required. Id. at 332; Ozuna v.

State, 199 S.W.3d 601, 606 (Tex.App.—Corpus Christi 2006, no pet.). See also Cantu

v. State, 366 S.W.3d 771, 775-776 (Tex.App.—Amarillo 2012, no pet.).



                                             7
       To convict appellant of aggravated sexual assault under the counts alleged in the

indictment, it was for the State to prove beyond a reasonable doubt that appellant

intentionally or knowingly caused the penetration of the anus or sexual organ of K.T.

(Counts I, II, and III); caused the penetration of the mouth of K.T. by the sexual organ of

appellant (Count IV); and K.T. was younger than 14 years of age. Tex. Penal Code

Ann. § 22.021(a)(1)(B)(i)(ii),(2)(B) (West Supp. 2013).


       To convict appellant of indecency with a child under the counts alleged in the

indictment, the State was required to prove beyond a reasonable doubt that K.T. was a

child younger than seventeen years of age and not his spouse, of the same or opposite

sex, with whom he engaged in sexual contact (Count V) or with the intent to arouse or

gratify sexual desire exposed any part of his genitals, knowing K.T. was present (Count

VI). Tex. Penal Code Ann. § 21.11(a)(1) & (a)(2)(A) (West 2011). Under section 21.11

sexual contact includes touching, including touching through clothing, of any part of

K.T.‟s breast, if committed with the intent to arouse or gratify sexual desire. Tex. Penal

Code Ann. § 21.11(c)(1) (West 2011).


       Testifying before the jury, appellant emphatically denied any improper sexual

contact with K.T. He acknowledged it might have been possible she saw him as he

arose from bed of a morning, but denied he ever intentionally exposed his genitals to

K.T. He testified he has been around children all his life and has never before been

accused of any sexual misconduct. He told the jury he believes the child was induced

by Sanchez to fabricate the stories and allegations after he left their relationship.




                                              8
       On appeal, appellant emphasizes the evidence of K.T.‟s prior fabrications. He

also points to the very significant differences in the story K.T. told the Bridge interviewer

in October, in which she mentioned only touching her “chichis” and her belly button

area, from that she told in December, of repeated vaginal, anal and oral penetration,

when appellant had been in jail since October. He points also to the questions raised

by the child‟s accusations that others have sexually assaulted her, questions concerning

potential fabrications and concerning the possibility that the sexual experiences she

testified to came from the actions of her brother rather than appellant. He notes the

sexual assault exam did not confirm Sanchez‟s report of vaginal bleeding or a rash.

Appellant also notes the evidence of Sanchez‟s jealous and accusatory nature.


       Certainly there were conflicts in the evidence the jury heard, and conflicting

inferences rationally can be drawn from the evidence.          K.T.‟s testimony contained

inconsistencies that reasonably can be seen as impeaching her credibility. But her

testimony before the jury was consistent with the information she gave the sexual

assault nurse examiner. She testified to actions of appellant that met the elements of

the counts on which he was convicted. She was thoroughly and effectively cross

examined.    As was its role, the jury assessed the credibility and demeanor of the

witnesses. The jury was free to believe some, all, or none of the evidence supporting

appellant‟s innocence or guilt. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.

1991). This latitude also applied to the evidence of unlawful acts allegedly committed

against K.T. by others, as well as that of the jealousy of Sanchez and her intent to harm

appellant through fabricated allegations. Applying the Jackson standard, we conclude a

rational trier of fact could have found beyond a reasonable doubt each essential



                                             9
element of each offense on which a conviction was returned. We overrule appellant‟s

first issue.


       In his second issue, appellant complains that the trial court responded to a jury

question with a statement “which was not read to appellant in open court.”


       The jury began its deliberations regarding guilt or innocence at 2:12 p.m. During

the afternoon the court received and addressed five jury notes. From comments by the

court, the jury was apparently provided an evening meal. The court granted the jury a

twenty-minute break at 6:30 p.m. At an unspecified time thereafter, the court received a

sixth jury note, marked as court‟s exhibit 6, which the court read on the record. The

note inquired:


       Could you please let us have [K.T.‟s] testimony concerning the houses
       with the red windows and the approximate times of the alleged abuse?
       There is disagreement on the date(s) of alleged abuse in house w/ red
       windows.
       /s/ [jury foreman] (Underlining in original).


Below the request the court gave its handwritten response:


       The testimony you have requested is so broad that it would require a
       reading of nearly all of the witnesses‟ testimony. Unless you can be much
       more specific in your request, the Court cannot provide this testimony.
       /s/ [district judge presiding] (Underlining in original).


       In regard to above (white house with red windows)[.]


       In the presence of the prosecutor and counsel for appellant, the court read the

portion of its response that preceded its signature. Neither expressed objection. The

court did not, however, read orally the final sentence of its response, “In regard to above


                                               10
(white house with red windows).” As for whether the court otherwise submitted the

written question and its response, including the final sentence, to appellant or his

counsel before delivery to the jury, the record is silent.8


       In responding to a request from the jury, article 36.27 of the Code of Criminal

Procedure requires the court to “first submit the question and also submit his answer to

the same to the defendant or his counsel or objections and exceptions, in the same

manner as any other written instructions are submitted to such counsel, before the court

gives such answer to the jury . . . .”9       Before the charge is read to the jury “the

defendant or his counsel shall have a reasonable time to examine the same . . . .” Tex.

Code Crim. Proc. Ann. art. 36.14 (West 2007).




       8
         On receipt of the jury‟s first question, the court proposed a response and asked
if the State or appellant objected. Counsel for appellant responded, “Judge, I want the
Court to note that I have shown [appellant] the jury‟s question . . . and I‟ve also shown
him the Court‟s proposed response.” The record does not indicate this procedure was
followed in conjunction with the later jury notes, but the record also does not indicate the
court failed to submit the questions and responses to appellant or his counsel before
tendering them to the jury.
       9
           Article 36.27 provides:

       The court shall answer any such communication in writing, and before
       giving such answer to the jury shall use reasonable diligence to secure the
       presence of the defendant and his counsel, and shall first submit the
       question and also submit his answer to the same to the defendant or his
       counsel or objections and exceptions, in the same manner as any other
       written instructions are submitted to such counsel, before the court gives
       such answer to the jury, but if he is unable to secure the presence of the
       defendant and his counsel, then he shall proceed to answer the same as
       he deems proper. The written instruction or answer to the communication
       shall be read in open court unless expressly waived by the defendant.

Tex. Code Crim. Proc. Ann. art. 36.27 (West 2006).


                                              11
       In support of his contention the court‟s apparent failure to comply with the

requirements of article 36.27 requires reversal, appellant cites case law holding that a

trial court‟s substantive responses to jury questions during deliberations essentially

amount to additional or supplemental jury instructions.      See Villareal v. State, 205

S.W.3d 103 (Tex.App.—Texarkana, 2006, pet. dismissed, untimely filed) (so stating,

citing Daniell v. State, 848 S.W.2d 145, 147 (Tex.Crim.App. 1993)). He contends the

last sentence of the court‟s response to the jury‟s sixth note was such an additional

instruction. We disagree.


       The court‟s response to the jury‟s sixth note told the jury the court could not

provide the testimony jurors requested unless the request was made more specific.

The response was akin to those discussed in Allaben v. State, 418 S.W.2d 517, 520-21

(Tex.Crim.App. 1967), in which the court simply refuses to answer the jury‟s request for

further instruction.   Such a response is not a substantive response, and does not

constitute additional instruction to the jury. Id. at 520; see Daniell, 848 S.W.2d. at 147

(citing Allaben, 418 S.W.3d at 520). The court‟s addition of the last sentence, “In regard

to above (white house with red windows),” did not convert the court‟s non-substantive

response to one of substance.


       Where a communication between the jury and the trial court does not amount to

an additional instruction, the court‟s failure to comply with article 36.27 does not

constitute reversible error. McFarland v. State, 928 S.W.2d 482, 517-18 (Tex.Crim.App.

1996); Dooley v. State, 65 S.W.3d 840, 842 (Tex.App.—Dallas 2002, pet. refused).

That is the case here.




                                           12
       Nor can we agree with appellant‟s further contention the court‟s addition of the

last sentence to its response constituted a comment on the weight of the evidence. A

trial court‟s comment on the weight of the evidence is improper if it implies approval of

the State‟s argument, indicates any disbelief in the defense position, or diminishes the

credibility of the defense‟s approach to the case. Clark v. State, 878 S.W.2d 224, 226

(Tex.App.—Dallas 1994, no pet.). Whether such a comment constitutes harmful error

depends on its materiality, that is, whether the same issue was before the jury. Id.

Here, there is no evidence of more than one white house, nor is there evidence of more

than one house with red windows. And from the photograph in evidence it appears

undisputed the white house on Poplar Street had red window frames. We see no

indication from the record of dispute over the color of the windows at the white house,

nor of dispute over which house K.T. was referring to when she testified some events

occurred in the house with red windows. We thus see no risk that the court‟s written

statement connecting the red windows with the white house would have been seen by a

juror as supporting any position the State was taking or casting doubt on any argument

appellant had presented.


       For all these reasons, we overrule appellant‟s second issue.


       By his third issue, appellant contends the trial court abused its discretion by three

times failing to grant a mistrial on receipt of a communication from the jury.


       In a note marked as court‟s exhibit 7, the jury informed the court that as of 9:00

p.m. jurors were divided on each of the six counts. The court responded, “Please

continue your deliberations.” Counsel for defendant moved for a mistrial on the ground,




                                             13
“they‟re trying to tell the Court that they‟re deadlocked on a decision.” In denying the

motion, the court noted the time was 9:10 p.m., some seven and one-half hours into

deliberation.


       Later, the jury submitted another note which the court marked as court‟s exhibit

8. It sought clarification regarding K.T.‟s testimony supporting the charge in count 1.

The court responded that the request must be made more clear. Appellant moved for a

mistrial arguing the jury‟s note further indicated it was deadlocked. The court denied the

motion.


       By its note marked as court‟s exhibit 9, the jury clarified the division among jurors

regarding a portion of K.T.‟s testimony. The court proposed to have the reporter read a

brief excerpt of K.T.‟s testimony to the jury. In the colloquy that followed, counsel for

appellant again moved for a mistrial on the ground the jury was deadlocked. The court

overruled the motion and the jury returned to open court to hear the designated excerpt.

Thereafter, the jury reached a verdict, and at 10:22 p.m. court convened for its reading.


       A trial court may discharge the jury in its discretion if the jury “has been kept

together for such time as to render it altogether improbable that it can agree.” Tex.

Code Crim. Proc. Ann. art. 36.31 (West 2006).         Thus an express time limit is not

imposed on a jury for its deliberations.         Guidry v. State, 9 S.W.3d 133, 155

(Tex.Crim.App. 1999). “The trial court is not bound to declare mistrial at the first sign of

jury impasse.” Howard v. State, 941 S.W.2d 102, 121 (Tex.Crim.App. 1996) (en banc).

Reversal is not mandated unless the record establishes the trial court abused its

discretion in holding the jury for deliberations. Montoya v. State, 810 S.W.2d 160, 166




                                            14
(Tex.Crim.App. 1989) (en banc).       Whether the trial court abused its discretion is

assessed by the amount of time the jury deliberated considered in light of the nature of

the case and the evidence. Ex parte Templin, 945 S.W.2d 254, 256 (Tex.App.—San

Antonio 1997, pet. refused) (per curiam) (citing Patterson v. State, 598 S.W.2d 265, 268

(Tex.Crim.App. [Panel Op.] 1980); cf. Jackson v. State, 17 S.W.3d 664, 676

(Tex.Crim.App. 2000) (considering length of trial and volume of evidence for abuse of

discretion determination).


         Appellant was charged with six serious felonies alleging sexual misconduct with

a child. By the child‟s testimony, the offenses alleged occurred at different locations,

some identified by the exterior color of a structure. Only following its 9:00 p.m. vote did

the jury indicate it had not reached a unanimous vote on each count. By that time,

deliberations had been underway about seven hours, but during the period the jury had

a meal and received a twenty-minute break. Nothing here suggests at the time of the

9:00 p.m. vote, or any time over the following hour and twenty-two minutes, it was

improbable the jury would reach a unanimous verdict. Indeed, court‟s exhibit 7 can be

seen as no more than a report on the progress of deliberations. And the remaining jury

communications appellant questions here did not contain an express statement of

perceived incurable deadlock. We conclude the trial court did not abuse its discretion

by overruling appellant‟s three motions for mistrial, and we overrule appellant‟s third

issue.




                                            15
                                        Conclusion


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

court.


                                          James T. Campbell
                                              Justice



Do not publish.




                                            16
