                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-15-00168-CR

ERIC MOSQUEDA,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2013-1757-C2


                           MEMORANDUM OPINION


      Eric Mosqueda appeals from convictions for one count of aggravated sexual

assault of a child under the age of fourteen, two counts of sexual assault of a child, and

three counts of indecency with a child by contact. TEX. PEN. CODE ANN. §§ 21.11, 22.021

(West 2011). Mosqueda complains that the evidence was insufficient on all six counts

due to the evidence being in "equipoise," was insufficient as to the aggravated sexual

assault and the three indecency counts that occurred in 2006, that there was a material

variance rendering the evidence insufficient as to one of the indecency charges, that the
jury charge's instruction regarding jury unanimity was insufficient, and that the trial

court abused its discretion by refusing to admit evidence. Because we find no reversible

error, we affirm the judgments of the trial court.

                                SUFFICIENCY OF THE EVIDENCE

       In issues one through six, Mosqueda complains that the evidence was insufficient

for the jury to have found him guilty of all six counts beyond a reasonable doubt because

there was evidence that the victim may have falsely accused Mosqueda, which he

contends showed the "equal probability of innocence."

Standard of Review

       The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

       In determining whether the evidence is legally sufficient to support a
       conviction, a reviewing court must consider all of the evidence in the light
       most favorable to the verdict and determine whether, based on that
       evidence and reasonable inferences therefrom, a rational fact finder could
       have found the essential elements of the crime beyond a reasonable doubt.
       Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
       13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the
       responsibility of the trier of fact fairly to resolve conflicts in the testimony,
       to weigh the evidence, and to draw reasonable inferences from basic facts
       to ultimate facts.” Jackson, 443 U.S. at 319. “Each fact need not point directly
       and independently to the guilt of the appellant, as long as the cumulative
       force of all the incriminating circumstances is sufficient to support the
       conviction.” Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

       The Court of Criminal Appeals has also explained that our review of “all of the


Mosqueda v. State                                                                          Page 2
evidence” includes evidence that was properly and improperly admitted. Conner v. State,

67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. at 326.

Further, direct and circumstantial evidence are treated equally: “Circumstantial evidence

is as probative as direct evidence in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt.” Hooper v. State, 214 S.W.3d at 13.

Finally, it is well established that the factfinder is entitled to judge the credibility of

witnesses and can choose to believe all, some, or none of the testimony presented by the

parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

         A conviction for aggravated sexual assault of a child is "supportable on the

uncorroborated testimony of the victim of the sexual offense." TEX. CODE CRIM. PROC.

ANN. art. 38.07(a); Martinez v. State, 178 S.W.3d 806, 814 (Tex. Crim. App. 2005) (noting

that article 38.07 "deals with the sufficiency of evidence required to sustain a conviction

for" certain sexual offenses) (emphasis in original). The State has no burden to produce

any corroborating or physical evidence. Martines v. State, 371 S.W.3d 232, 240 (Tex.

App.—Houston [1st Dist.] 2011, no pet.); see also Lee v. State, 176 S.W.3d 452, 458 (Tex.

App.—Houston [1st Dist.] 2004) ("The lack of physical or forensic evidence is a factor for

the jury to consider in weighing the evidence."), aff'd, 206 S.W.3d 620 (Tex. Crim. App.

2006).


Mosqueda v. State                                                                     Page 3
FACTS

        Mosqueda is married to the victim's mother. The victim testified that the first

incident between Mosqueda and her occurred in 2006 when she was in the sixth grade.

According to the victim, Mosqueda and the victim were lying on a couch together when

Mosqueda touched her breast on the outside and asked her bra size. Mosqueda then

kissed her and told her she was a pretty good kisser for her age. This constituted the

basis for count VI, which was indecency with a child by contact by touching the breast of

the victim, a child under the age of 17, with Mosqueda's hand.

        The second incident took place approximately one month after the first incident in

2006 when Mosqueda and the victim were watching television while sitting on two

recliners and smoking marijuana together. Mosqueda pulled the victim onto his recliner,

kissed her and rubbed her breasts. Mosqueda and the victim moved to the sofa, where

Mosqueda got on top of the victim and began "dry humping" her. They moved back to

one of the recliners and the victim rubbed Mosqueda's penis over his clothing. Mosqueda

then pulled out his penis and the victim started kissing it until they were discovered by

the victim's mother. After this incident, the victim was sent to Amarillo to live with her

father. The second incident formed the basis for counts I, IV, and V of the indictment.

Count one alleged that Mosqueda intentionally or knowingly caused the victim's mouth

to contact his sexual organ. Count IV alleged that Mosqueda committed the offense of

indecency by contact by touching the victim's breast. Count V alleged that Mosqueda


Mosqueda v. State                                                                   Page 4
committed indecency by causing the victim to engage in sexual contact with him by

causing her to touch his genitals with her hand.

       The third incident took place in 2013 when the victim was sixteen years old and

back residing with her mother and Mosqueda. The victim testified that she stayed home

from school one day due to back pain. Mosqueda gave her a massage that day and pulled

her on top of him. While the victim was straddling Mosqueda, the victim stated that

Mosqueda ran his hands up her legs under her shorts and stuck both of his thumbs inside

of her vagina. This incident constituted the basis for count II, which alleged that

Mosqueda intentionally or knowingly caused the penetration of the victim's sexual organ

with a finger or thumb.

       The fourth incident took place a short time later when the victim had been

grounded by her mother for running away. Her bedroom window had been boarded

shut and the door into her bedroom had been removed. The victim had been sleeping

with her mother and Mosqueda at night for one to two weeks, lying either on her mother's

side or in between her mother and Mosqueda. One night when she and her mother were

sleeping in the bed, Mosqueda came in and began rubbing and pulling on her leg.

Mosqueda started alternating touching her in her vagina and rubbing on his penis under

his clothing. The victim scooted closer to her mother and the touching stopped.

        There was evidence presented that the victim had made an outcry of sexual abuse

against her adoptive father in 2005, which she later recanted in a written affidavit. The


Mosqueda v. State                                                                  Page 5
prosecution against her father was put on hold for a time but resumed when the victim's

stepbrother made a similar allegation against her adoptive father as well in 2009. The

victim's father committed suicide shortly before trial in 2009. The victim stated that the

affidavit where she recanted her outcry was false and that she was coerced into signing

it by her mother.

       In 2006, a psychological evaluation of the victim was completed by Dr. William

Carter. Carter testified at trial regarding the victim's psychological history as it was

reported to him and testified in general regarding child victims of sexual assault. At the

time of her evaluation, the victim was ten years old and was considered to be deceitful

and vindictive by her family. Dr. Carter found that she could have the potential for

deceptiveness, was overly sexualized for a child her age, and stated that she said that her

mother and adoptive father were getting divorced because the victim had lied.

       The victim's mother did not believe any of the victim's allegations. The mother

testified that she saw the victim sitting on Mosqueda's lap and got very upset in 2006 but

not that his pants were undone. The mother testified that she knew that Mosqueda

smoked marijuana and knew of one occasion when he had smoked it with the victim.

The mother testified that the victim had started acting out sexually when she was

approximately eight years old, which continued throughout her teenage years. The

mother admitted that the victim had told her about a dream where the victim was

touched inappropriately by Mosqueda, which was what the victim had testified to telling


Mosqueda v. State                                                                    Page 6
her mother the night that the fourth incident occurred in 2013. The mother had been

indicted for injury to a child based on her knowledge of and failure to prevent the sexual

conduct by Mosqueda, which was still pending at the time of trial.

       The victim did not tell anyone of the incidents in 2006 until a forensic interview

was conducted regarding the 2013 incidents, even though she had spoken to a

psychologist, therapist, police officers, and an employee of the district attorney's office in

the time following when the 2006 incidents occurred. The victim had given a written

statement to law enforcement regarding the 2013 offenses, and Mosqueda attempted to

show that there were discrepancies between that statement and her testimony at trial

regarding whether there was wrestling involved between them in the first 2013 incident

or in what position she was sleeping in the second 2013 incident in an effort to cast doubt

on the veracity of her allegations.

       Mosqueda contends that the evidence was in "equipoise" as to whether or not the

offenses occurred because of Dr. Carter's testimony, the delayed outcry of the 2006

offenses, and because of inconsistencies in her statements to police regarding the 2013

offenses. However, because a child victim's testimony standing alone is sufficient for a

jury to find a defendant guilty of a sexual offense, and any inconsistencies in the

testimony are resolved by the jury's determinations regarding the credibility of the

witnesses, Mosqueda's argument regarding "equipoise" is not the appropriate standard

for our review, which is largely a request to view the evidence in a neutral light and to


Mosqueda v. State                                                                       Page 7
not consider as determinative the jury's determinations regarding credibility of the

witnesses and which testimony it believed. These standards relate to a review of the

factual sufficiency of the evidence, which was eliminated in criminal proceedings in

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010).

       Viewing the evidence in the light most favorable to the verdict, we find that the

evidence was sufficient for the jury to have found that Mosqueda was guilty of all six

counts beyond a reasonable doubt. We overrule issues one, two, three, four, five, and six.

       In issues seven through ten, Mosqueda complains that the evidence was

insufficient for the jury to have found that he committed any of the offenses from 2006

because there was no corroboration of the victim's testimony or of her mother's

testimony. However, as set forth above, a conviction for aggravated sexual assault of a

child is "supportable on the uncorroborated testimony of the victim of the sexual offense."

TEX. CODE CRIM. PROC. ANN. art. 38.07(a). Additionally, the State has no burden to

produce any corroborating or physical evidence. Martines v. State, 371 S.W.3d 232, 240

(Tex. App.—Houston [1st Dist.] 2011, no pet.). Because of this, Mosqueda's complaints

regarding the lack of corroboration of the victim's testimony are overruled. We overrule

issues seven, eight, nine, and ten.

       In issue eleven, Mosqueda complains that the evidence is insufficient for the jury

to have found that he touched the victim's breast with anything other than his hand.

Therefore, Mosqueda argues that he cannot be found guilty of count IV of the indictment,


Mosqueda v. State                                                                    Page 8
which alleged that he committed the offense of indecency with a child by touching her

breast, because he was found guilty of count VI of the indictment which alleged that he

committed the offense of indecency with a child by touching her breast with his hand and

both counts were alleged to have been committed on the same date in 2006 in the

indictment.

       Mosqueda argues that because the allegations in count VI specifically mention use

of his hand in touching the victim's breast but did not mention how the touching of the

breast occurred in count IV, the State "effectively alleged in Count IV that [Mosqueda]

touched the [victim's] breast in some manner other than by using his hand." Mosqueda

contends that there was insufficient evidence of a touching of the breast by any other

means which creates a variance between the indictment and the proof at trial.

       "A 'variance' occurs when there is a discrepancy between the allegations in the

indictment and the proof presented at trial.” Gollihar v. State, 46 S.W.3d 243, 246 (Tex.

Crim. App. 2001). In a case where a variance is raised, "the State has proven the defendant

guilty of a crime, but has proven its commission in a manner that varies from the

allegations in the [indictment]." Id. Such a variance may render the evidence insufficient

to sustain the conviction. Id. at 247.

       When the reviewing court is faced with a sufficiency of the evidence claim based

upon a variance between the indictment and the proof, only a material variance will

render the evidence insufficient and require reversal. Id. at 257. In Gollihar, the court


Mosqueda v. State                                                                    Page 9
adopted the materiality test applied in the Fifth Circuit. Id. Under that test, a variance

between the wording of an indictment and the evidence presented at trial constitutes a

"fatal variance" mandating reversal only if it is material and prejudices the defendant's

substantial rights. Id. When reviewing such a variance, we must determine whether the

indictment, as written, informed the defendant of the charge against him sufficiently to

allow him to prepare an adequate defense at trial, and whether prosecution under the

deficiently drafted indictment would subject the defendant to the risk of being

prosecuted later for the same crime. Id.

       The elements to the offense of indecency with a child by contact relevant to count

IV is that "a person commits an offense if, with a child younger than 17 years of age,

whether the child is of the same or opposite sex, the person engages in sexual contact

with the child or causes the child to engage in sexual contact." TEX. PENAL CODE ANN. §

21.11(a)(1).   In relevant part, “sexual contact” is defined as "the following acts, if

committed with the intent to arouse or gratify the sexual desire of any person: any

touching by a person, including touching through clothing, of the anus, breast, or any

part of the genitals of a child." TEX. PENAL CODE ANN. § 21.11(c)(1). The indictment

regarding count IV was not erroneous because it did not state how the touching occurred

and Mosqueda does not argue that the indictment was erroneous or should have been

more specific. Therefore, any failure to include specifically how the touching occurred is

not before us.


Mosqueda v. State                                                                  Page 10
       We disagree with Mosqueda's contention that count IV required touching of the

breast by any means other than his hand. The evidence at trial clearly set forth two

discrete incidents of Mosqueda's touching of the victim's breast in 2006. We do not find

that there was a variance between the indictment and the proof at trial that would render

the evidence insufficient as to count IV. We have previously determined that the

evidence was otherwise sufficient to support the convictions for count IV. We overrule

issue eleven.

JURY CHARGE ERROR

       In issues twelve and thirteen, Mosqueda complains that the jury charge was

erroneous regarding the instructions provided regarding jury unanimity relating to

counts IV and VI. Mosqueda contends that because one count alleged touching by his

hand and the other merely alleged touching, the jury charge allowed for him to be

convicted on a less than unanimous verdict as to the specific incident of criminal conduct.

       A jury must reach a unanimous verdict about the specific crime the defendant

committed. See U.S. CONST. amends. V, XIV; TEX. CONST. art. V, § 13; TEX. CODE CRIM.

PROC. ANN. art. 36.29(a) (West Supp. 2013); Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim.

App. 2011); Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim. App. 2008). "[T]he jury must

'agree upon a single and discrete incident that would constitute the commission of the

offense alleged.'" Cosio, 353 S.W.3d at 771 (quoting Stuhler v. State, 218 S.W.3d 706, 717

(Tex. Crim. App. 2007)). "[N]on-unanimity may occur when the State charges one offense


Mosqueda v. State                                                                   Page 11
and presents evidence that the defendant committed the charged offense on multiple but

separate occasions." Id. at 772.

       When evidence is presented regarding multiple incidents, which would

individually establish different offenses, the "[court's] charge, to ensure unanimity,

would need to instruct the jury that its verdict must be unanimous as to a single offense

or unit of prosecution among those presented." Id.; accord Ngo v. State, 175 S.W.3d 738,

748-49 (Tex. Crim. App. 2005). Because the burden rests on the court to instruct the jury

as to the law applicable to the case, the trial court must submit a charge to the jury that

"does not allow for the possibility of a non-unanimous verdict." Cosio, 353 S.W.3d at 776.

We first determine if error occurred and, "if we find error, we analyze that error for harm."

Ngo, 175 S.W.3d at 743 (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App.

2003)). If there was error, and the appellant objected to the error at trial, reversal is

required when the error is "calculated to injure the rights of the defendant;" defined to

mean that there is "some harm." Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1985). If, as in this case, the error was not objected to, reversal is only required if the harm

was so egregious and created such harm that the defendant "has not had a fair and

impartial trial." Id. at 172 (quoting Ross v. State, 487 S.W.2d 744, 745 (Tex. Crim. App.

1972)); see also Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) ("The failure to

preserve jury-charge error is not a bar to appellate review, but rather it establishes the

degree of harm necessary for reversal.").


Mosqueda v. State                                                                       Page 12
       The jury charge contained the following instruction:

       In this case, you may have heard evidence alleging multiple incidents of
       criminal conduct, if any, which may, individually, form the basis of a
       conviction for the same count. You are instructed that you must agree
       unanimously on which incident, if any, forms the basis for your conviction
       under a particular count as alleged in the indictment.

       Mosqueda contends that the instruction was not sufficient because it did not

explain that the jury was "required to disregard the sameness as to the way of committing

the offense and as to the date of the offense" and because there was no instruction that

"touch with hand" and "touch" did not mean the same thing. Further, Mosqueda argues

that the instruction should have been submitted in tandem with the application

paragraphs and that these failures all caused egregious harm to Mosqueda.

       Because Mosqueda did not object to the jury charge on this basis, even if we

assume without deciding that the jury charge was erroneous, we do not find that

Mosqueda was egregiously harmed. We have reviewed the entire jury charge, the state

of the evidence, including the contested issues and the weight of the probative evidence,

the arguments of counsel, and the trial as a whole in conducting a harm analysis as

required by Almanza and its progeny. See Warner v. State, 254 S.W.3d 458, 461 (Tex. Crim.

App. 2008).

       The victim testified to two separate incidents where Mosqueda touched her breast

in 2006. There was no other evidence regarding touching of her breast by any means

other than by Mosqueda's hand or on other dates in 2006. The State's closing argument


Mosqueda v. State                                                                   Page 13
described the two separate incidents of touching the victim's breast in 2006 that were

testified to by the victim. Mosqueda argued in closing that none of the incidents occurred

and that the victim was lying.

       Because we find that Mosqueda was not egregiously harmed by the error in the

jury charge, if any, we overrule issues twelve and thirteen.

ADMISSION OF EVIDENCE

       In issues fourteen and fifteen, Mosqueda complains that the trial court abused its

discretion by sustaining the State's hearsay objections to photographs and testimony

regarding writings on the victim's mirror in her bedroom. The photographs show the

mirror with the phrases "Heartbreaker (<13)," "Lie Now Die Later," "Smile Now I Lov3

You Fuck Now," and "Sex = Power." Mosqueda argues that the photographs depicting

these phrases that were written on the mirror by the victim and the victim's testimony

about the phrases was not hearsay or should have been admitted as an exception to the

hearsay rule regarding her state of mind and motive for bias. See TEX. R. EVID. 803(3).

       Mosqueda offered the photographs into evidence during the testimony of the

victim's mother. The State objected to the admission of the photographs as containing

hearsay. Mosqueda later attempted to question the victim about the writings when she

was recalled to testify, and the State objected again. The trial court sustained both

objections. Mosqueda did not make any other offer of proof regarding the photographs

or what the testimony would have been other than the specific phrases that were depicted


Mosqueda v. State                                                                  Page 14
in the photographs.

       Even if we assume without deciding that the trial court should have overruled the

State's objections and admitted the photographs into evidence, we must disregard any

nonconstitutional error that does not affect a substantial right of Mosqueda. TEX. R. APP.

P. 44.2(b). A substantial right is affected when the error has a substantial and injurious

effect or influence in determining the jury's verdict. Johnson v. State, 43 S.W.3d 1, 4 (Tex.

Crim. App. 2001). There was no evidence presented regarding when the photographs

were taken and no offer of proof was made regarding what testimony Mosqueda sought

to elicit from the victim upon questioning her about the writings. We do not find that the

exclusion of the phrases in the photographs, standing alone, constituted reversible error.

Therefore, the error, if any, was harmless. We overrule issues fourteen and fifteen.

CONCLUSION

       Having found no reversible error, we affirm the judgments of the trial court.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 17, 2016
Do not publish
[CRPM]




Mosqueda v. State                                                                     Page 15
