                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-13-00596-CR

                                     Mario Josue QUINTERO,
                                             Appellant

                                                 v.
                                                The
                                        The STATE of Texas,
                                              Appellee

                     From the 38th Judicial District Court, Medina County, Texas
                                  Trial Court No. 11-07-10748-CR
                         The Honorable Camile G. Dubose, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: April 15, 2015

AFFIRMED AS MODIFIED

           Mario Josue Quintero was charged with the offense of continuous sexual abuse of a child

against two victims occurring from August 1, 2010 to September 9, 2012. The jury found Quintero

guilty as charged in the indictment, and the trial court sentenced Quintero to fifty years’

imprisonment. On appeal, Quintero contends that the trial court erred in: allowing two witnesses

to testify as outcry witnesses; in determining that the child complainants were competent to testify;

and by giving the jury instructions which allowed the jury to find him guilty without requiring it
                                                                                           04-13-00596-CR


to find that two or more acts of sexual abuse were committed thirty days or more apart. We affirm,

but modify the judgment of the trial court to correct a clerical error.

                                                  CHARGE ERROR

           In his first issue, Quintero contends that the trial court erred in giving the jury instructions

that allowed the jury to find him guilty without requiring a finding that two or more acts of sexual

abuse were committed 30 days or more apart. When reviewing alleged charge error, we must first

determine whether error existed in the charge. Sakil v. State, 287 S.W.3d 23, 25 (Tex. Crim. App.

2009). When, as here, the appellant did not object to the alleged error, we will reverse only if the

error is “‘so egregious and created such harm’” that the defendant did not receive a fair and

impartial trial. Id. at 26 (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)).

We consider (1) the entire jury charge, (2) the state of the evidence, including contested issues and

the weight of probative evidence, (3) the parties’ arguments, and (4) any other relevant information

found in the record as a whole. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008).

           A person commits the offense of continuous sexual abuse of a child if (1) during a period

that is 30 or more days in duration, the person commits two or more acts of sexual abuse; 1 and (2)

at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or

older and the victim is a child younger than 14 years of age. TEX. PENAL CODE ANN. § 21.02(b)

(West Supp. 2014). Although the exact dates of the abuse need not be proven, the offense of

continuous sexual abuse of a child does require proof that the last act of sexual abuse occur on at

least the 29th day after the day of the first act. See id. § 21.02(d) (“The jury must agree

unanimously that the defendant, during a period that is 30 or more days in duration, committed

two or more acts of sexual abuse.”); Williams v. State, 305 S.W.3d 886, 890-91 (Tex. App.—



1
    The acts of sexual abuse do not have to be committed against the same victim.

                                                          -2-
                                                                                     04-13-00596-CR


Texarkana 2010, no pet.) (requiring State to prove two acts of sexual abuse “committed over a

span of thirty or more days”).

       Here, the jury charge provided, in pertinent part:

       A person commits the offense of Continuous Sexual Abuse of a Child if during a
       period that is 30 or more days in duration, the person commits two or more acts of
       sexual abuse, regardless of whether the acts of sexual abuse are committed against
       one or more victims; and at the time of the commission of each of the acts of sexual
       abuse, the actor is 17 years of age or older and the victim is a child younger than
       14 years of age.

       ....

       In order to find the defendant guilty of the offense of Continuous Sexual Abuse of
       a Child, you are not required to agree unanimously on which specific acts of sexual
       abuse were committed by the Defendant or the exact date when those acts were
       committed. However, in order to find the Defendant guilty of the offense of
       Continuous Sexual Abuse of a Child, you must agree unanimously that the
       Defendant, during a period that is 30 or more days in duration, committed two or
       more acts of sexual abuse.

       ....

       Now bearing in mind the foregoing instructions, if you believe from the evidence
       beyond a reasonable doubt that the Defendant, MARIO JOSUE QUINTERO, on or
       about [the] 1st [d]ay of August, 2010 through the 9th day of September 2012 in
       Medina County, Texas, during a period that was 30 days or more in duration,
       committed two or more acts of sexual abuse against [D.B.], [A.V.,] and [D.V.] said
       acts of sexual abuse having been violations of one or more of the following penal
       laws . . . then you will find the Defendant guilty of the offense of Continuous Sexual
       Abuse of a Child as charged in the indictment.

Quintero asserts that the application paragraph lowered the State’s burden of proof because it

allowed the jury to find him guilty so long as two or more acts of sexual abuse occurred between

August 1, 2010 and September 9, 2012, regardless of whether the acts occurred at least 30 days

apart. In support, Quintero relies on Smith v. State, 340 S.W.3d 41, 50 (Tex. App.—Houston [1st

Dist.] 2011, no pet.), in which the jury was instructed that it could find the defendant guilty of

continuous sexual abuse of a child if two or more acts of sexual abuse occurred “on or about the

1st day of December, 2007, through the 1st day of September, 2008, which said time period being
                                                -3-
                                                                                       04-13-00596-CR


a period that was 30 days or more in duration.” (Emphasis added). The Smith court held that the

instruction was erroneous because it allowed the jury to find the defendant guilty regardless of

whether the acts occurred at least 30 days apart. Id. at 50-51.

       The charge before us, however, did not define the time period at issue as a period of 30

days or more in duration as occurred in Smith. Here, the application paragraph tracked the statutory

language of section 21.02(b), and instructed the jury that it could find Quintero guilty if he

committed two or more acts of sexual abuse against D.B., A.V., and D.V. during a period that was

30 days or more in duration. See TEX. PENAL CODE ANN. § 21.02(b); see also Martinez v. State,

924 S.W.2d 693, 699 (Tex. Crim. App. 1996) (jury charge tracking language of statute is proper

because “[f]ollowing the law as it is set out by the Texas Legislature will not be deemed error on

the part of a trial judge”). This Court recently analyzed a similarly-worded jury charge and held

that it was not analogous to that in Smith. Knowles v. State, No. 04-12-00180-CR, 2013 WL

1149063, at *4-5 (Tex. App.—San Antonio Mar. 20, 2013, pet. ref’d) (mem. op., not designated

for publication). Because the jury charge at issue tracked the applicable statutory language and

accurately set out the law applicable to the offense of continuous sexual abuse of a child, we

conclude the trial court did not err in instructing the jury. See id. at *5. Quintero’s first issue is

therefore overruled.

                                       OUTCRY WITNESSES

       In his second and third issues, Quintero contends that the trial court erred in allowing Carlos

Barragan and Maria Villarreal to testify as outcry witnesses. Certain hearsay statements are

admissible in the prosecution of the offense of continuous sexual abuse of a young child. TEX.

CODE CRIM. PROC. ANN. art. 38.072, § 1 (West Supp. 2014); see TEX. PENAL CODE ANN.

§§ 21.02(b), (c)(4); 22.021 (West Supp. 2014). The admissible “outcry” statements are those (1)

“that describe the alleged offense” and (2) were made by the child against whom the offense was
                                                 -4-
                                                                                       04-13-00596-CR


allegedly committed and (3) were made to the first person, eighteen years of age or older, other

than the defendant, to whom the child made a statement about the offense. See TEX. CODE CRIM.

PROC. ANN. art. 38.072 § 2(a)(1), (2), (3) (West Supp. 2014).

       A proper outcry witness is the first adult to whom the complainant makes a statement that

“in some discernible manner describes the alleged offense.” Garcia v. State, 792 S.W.2d 88, 91

(Tex. Crim. App. 1990). The statement “must be more than words which give a general allusion

that something in the area of child abuse was going on.” Id.; Reed v. State, 974 S.W.2d 838, 841

(Tex. App.—San Antonio 1998, pet. ref’d) (statement must be more than “a general allegation of

sexual abuse”). Moreover, the child victim’s statement to the outcry witness must describe the

alleged offense, not just any offense. See TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a)(1)(A).

       We review the trial court’s determination that an outcry statement is admissible under

article 38.072 for abuse of discretion. Garcia, 792 S.W.2d at 92; Knowles, 2013 WL 1149063, at

*1-2. “[A] trial court has broad discretion in determining the admissibility of such evidence. The

exercise of that discretion will not be disturbed unless a clear abuse of discretion is established by

the record.” Garcia, 792 S.W.2d at 92. A trial court abuses its discretion if no reasonable view

of the record could support the trial court's ruling. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim.

App. 2012) (reviewing motion for new trial for ineffective assistance of counsel). Under this

deferential standard of review, we view the evidence in the light most favorable to the trial court’s

ruling and will not substitute our judgment for that of the trial court. Id. Further, we must uphold

the trial court’s ruling if it is within the zone of reasonable disagreement. Id.

       Maria Villarreal is the mother of A.V. She testified that sometime in 2011, A.V. told her

that Quintero touched his penis. Villarreal was not sure what month it was when A.V. outcried,

but stated that it was probably May or June as they were coming back from Corpus Christi. The

defense objected to Villarreal’s designation as the outcry witness on the basis that she did not know
                                                 -5-
                                                                                      04-13-00596-CR


when the outcry occurred. The court overruled the objection and found Villarreal qualified under

article 38.072.

          Carlos Barragan is the father of D.B. Barragan testified that D.B. told him that Quintero

showed him pornography while his mother was in the shower. D.B. also said that Quintero wanted

to perform oral sex on him, and that Quintero asked D.B. to perform oral sex on him. Barragan

testified that D.B. told him those acts occurred. On cross-examination, Barragan could not recall

when the outcry occurred. The defense objected to Barragan’s designation as the outcry witness

because he could not recall details of the outcry. The trial court overruled the objection, and found

Barragan qualified to testify under article 38.072.

          On appeal, Quintero argues that Villarreal and Barragan were not proper outcry witnesses

because their statements do not describe acts that were alleged to have been committed by Quintero

and give no indication of the continuing nature and duration of the acts. He argues that their

statements constituted nothing more than words giving a “general allusion that something in the

area of child abuse occurred.” The State responds that Quintero’s complaints on appeal do not

comport with the objections made at trial. We agree. At trial, Quintero objected on the basis that

both witnesses did not know exactly when the outcry occurred, yet on appeal, his complaint is that

the outcry witnesses failed to specifically describe the acts alleged in the indictment against him.

The objection made at trial must comport with the error complained of on appeal. See Wilson v.

State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); see also TEX. R. APP. P. 33.1 (error must be

preserved by making complaint to trial court stating specific grounds for complaint). Because

Quintero’s objections at trial did not comport with his complaints on appeal, he has not preserved

his second and third issues for our review. Accordingly, we overrule Quintero’s second and third

issues.



                                                 -6-
                                                                                         04-13-00596-CR


                              COMPETENCY OF CHILD COMPLAINANTS

          In his last three issues, Quintero argues that the trial court erred in determining that the

child complainants, A.V., D.B., and D.V., were competent to testify. A trial court’s determination

of whether a child witness is competent to testify will not be disturbed on appeal absent an abuse

of discretion. Broussard v. State, 910 S.W.2d 952, 960 (Tex. Crim. App. 1995); De Los Santos v.

State, 219 S.W.3d 71, 80 (Tex. App.—San Antonio 2006, no pet.). We review the child’s entire

testimony, including his or her responses to qualification questions, to determine whether the trial

court’s ruling on competency constituted an abuse of discretion. De Los Santos, 219 S.W.3d at

80-81. A trial court does not abuse its discretion if its ruling was within the zone of reasonable

disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on

reh’g).

          A child is competent to testify unless it appears to the court that the child does not possess

sufficient intellect to relate the transactions with respect to which the child is interrogated. TEX.

R. EVID. 601(a)(2); Broussard, 910 S.W.2d at 960; De Los Santos, 219 S.W.3d at 80-81. When a

party challenges the competency of a child witness, the trial court will consider whether the child

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. See

Hogan v. State, 440 S.W.3d 211, 213-14 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). 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. See id. at 214. Confusing and

inconsistent responses from a child are not reasons to determine he or she is incompetent to testify;

rather, they speak to the credibility of the testimony. In re A.W., 147 S.W.3d 632, 635 (Tex.

App.—San Antonio 2004, no pet.). The trial court’s role is to make the initial determination of

competency, not to assess the credibility or weight to be given the testimony. Id.
                                                   -7-
                                                                                      04-13-00596-CR


        The trial court conducted a competency hearing outside the presence of the jury to

determine whether each child was competent to testify on behalf of the State. A.V. was eleven

years old at the time of trial. He demonstrated that he knew the difference between the truth and

a lie, and promised to only tell the truth. D.B. was ten years old at the time of trial. He, too,

explained the difference between the truth and a lie, and promised to only tell the truth. D.V. was

seven years old at the time of trial. She demonstrated an understanding of the difference between

right and wrong and promised to tell the jury what is “real.” Thus, each child demonstrated that

they had the capacity to narrate events, understand the difference between the truth and a lie, and

understand their obligation to tell the truth.

        Further, the children’s testimony during trial indicated they each had the ability to

intelligently recall and narrate the events, understand the difference between the truth and a lie,

and understand their moral responsibility to tell the truth. Any inconsistencies in the children’s

testimony about the specific incidents goes to their credibility, not their competency to testify. De

Los Santos, 219 S.W.3d at 81; In re A.W., 147 S.W.3d at 635. Based on their answers to the

qualification questions and their testimony as a whole during the proceedings, we conclude the

trial court did not abuse its discretion in determining that the children were competent to testify.

See Upton v. State, 894 S.W.2d 426, 429-31 (Tex. App.—Amarillo 1995, pet. ref’d); Dufrene v.

State, 853 S.W.2d 86, 88 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d) (noting that a child

no longer needs to understand the “obligation of the oath,” but simply the duty to be truthful).

Quintero’s final issues are, therefore, overruled.




                                                 -8-
                                                                                       04-13-00596-CR


                                                 CONCLUSION

           Based on the foregoing reasons, we overrule all of Quintero’s issues. Because the

judgment erroneously recites that Quintero was convicted under section “22.02” 2 of the Penal

Code, we correct the clerical error and modify the trial court’s judgment to reflect that Quintero

was convicted under section “21.02” of the Penal Code. See TEX. PENAL CODE ANN. § 21.02

(West Supp. 2014). As modified, we affirm the trial court’s judgment.


                                                         Rebeca C. Martinez, Justice

Do Not Publish




2
    See TEX. PENAL CODE ANN. § 22.02 (West Supp. 2014) (aggravated assault).

                                                       -9-
