Cesar Gomez v. State

NO. 12-13-00050-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CESAR GOMEZ, § APPEAL FROM THE 241ST

APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,

APPELLEE § SMITH COUNTY, TEXAS

OPINION

Cesar Gomez appeals his conviction for continuous sexual abuse of a child younger than

fourteen years of age, for which he was sentenced to imprisonment for life without the possibility

of parole. Appellant raises fourteen issues on appeal. We affirm.

BACKGROUND

Appellant began sexually abusing his daughter, F.G., in 2006 when she was eight years

old. According to F.G., the sexual abuse continued until March 1, 2012, when she was fourteen

years old. On March 5, 2012, she made an outcry statement to a school counselor concerning

Appellant’s sexually abusing her. As a result, Appellant was arrested and confessed in a

videotaped interview to having sexually assaulted F.G. multiple times within the preceding six

month period as a result of his being intoxicated. Officers searched Appellant’s home and

discovered, among other things, an expensive video surveillance system with multiple cameras,

one of which was aimed at F.G.’s bed and the other of which was aimed at the bed in the master

bedroom.

Appellant was charged by indictment with aggravated sexual assault and pleaded “not

guilty.” The indictment was later amended1 to charge Appellant with continuous sexual abuse of a

1

Appellant has raised several issues concerning whether the indictment was properly amended.

child under fourteen years of age. The matter proceeded to a jury trial, following which the jury

found Appellant “guilty” as charged. After a trial on punishment, the jury assessed Appellant’s

punishment at imprisonment for life without the possibility of parole. The trial court sentenced

Appellant accordingly, and this appeal followed.

ADMISSIBILITY OF PUNISHMENT EVIDENCE

In his first, second, third, and fourth issues, Appellant argues that the trial court abused its

discretion in admitting two photographs during his trial on punishment in violation of Texas Rules

of Evidence 401, 402, and 403.

Standard of Review and Governing Law

We review a trial court's ruling on the admissibility of evidence for an abuse of discretion.

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g). “That is to

say, as long as the trial court’s ruling was at least within the zone of reasonable disagreement, the

appellate court will not intercede.” Id. Furthermore, if the trial court’s evidentiary ruling is

correct on any theory of law applicable to that ruling, it will not be disturbed even if the trial judge

gave the wrong reason for a correct ruling. See De La Paz v. State, 279 S.W.3d 336, 344 (Tex.

Crim. App. 2009).

Under the Texas Rules of Evidence, relevant evidence is generally admissible. TEX. R.

EVID. 402. Texas Code of Criminal Procedure, Article 37.07, Section 3(a)(1), which governs the

admissibility of evidence during the punishment phase of a noncapital trial, states, “Regardless of

the plea and whether the punishment [is] assessed by the judge or the jury, evidence may be

offered by the state and the defendant as to any matter the court deems relevant to sentencing. . . .”

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2014). In discussing the practical

effect of Article 37.07, the Texas Court of Criminal Appeals has stated as follows:

[U]nder Article 37.07, the admissibility of evidence in a non-capital trial is a matter of

policy, including the policy of giving complete information to the jury to allow it to tailor an

appropriate sentence for the defendant. The result is that what is relevant for the jury to hear during

punishment is determined by whatever is helpful to the jury.

Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007) (citation omitted). With respect to

the relevance of photographic evidence, the court of criminal appeals further instructs as follows:

A photograph should add something that is relevant, legitimate, and logical to the testimony that

accompanies it and that assists the jury in its decision-making duties. Sometimes this will,

incidentally, include elements that are emotional and prejudicial. Our case law is clear on this

2

point: If there are elements of a photograph that are genuinely helpful to the jury in making its

decision, the photograph is inadmissible only if the emotional and prejudicial aspects substantially

outweigh the helpful aspects.

Erazo v. State, 144 S.W.3d 487, 491–92 (Tex. Crim. App. 2004).

Under Rule 403 of the Texas Rules of Evidence, even relevant “evidence may be excluded

if its probative value is substantially outweighed by the danger of unfair prejudice . . . .” TEX. R.

EVID. 403. “Rule 403 favors admissibility of relevant evidence, and the presumption is that

relevant evidence will be more probative than prejudicial.” Montgomery, 810 S.W.2d at 389.

Rule 403 requires both trial and reviewing courts to analyze and balance (1) the probative value of

the evidence (2) the potential to impress the jury in some irrational, yet indelible, way, (3) the

time needed to develop the evidence, and (4) the proponent's need for the evidence. See Erazo,

144 S.W.3d at 489. In making this determination, we consider factors including (1) the number of

exhibits offered, (2) their gruesomeness, (3) their detail, (4) their size, (5) whether they are black

and white or color, (6) whether they are close-up shots, (7) whether the body is naked or clothed,

(8) the availability of other means of proof, and (9) other circumstances unique to the individual

case. Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997).

Pornographic Photographs of Appellant and His Wife

In the instant case, the State sought to admit two photographs recovered from Appellant’s

cellular telephone. Each of these pictures was taken from Appellant’s point of view. The first

picture depicts Appellant’s wife placing her lips on his penis. The second picture depicts

Appellant’s wife placing her tongue on the underside of his penis. Appellant objected to the

admissibility of these photographs, arguing that they were not relevant and were “more prejudicial

than probative.” The trial court overruled Appellant’s objections.2

Relevance

At trial, the State asserted that the photographs were relevant because the photographs

were of Appellant’s penis, “and that’s what that little girl had to look at for six years.” And while

2

Thereafter, the parties discussed with the trial court whether the penis depicted in the picture belonged to

Appellant. The trial court admitted the photographs conditioned on the State’s proving Appellant’s identity therein.

Later, the State called Appellant’s girlfriend as a witness. She identified Appellant’s wife in the photographs and

further identified the penis depicted in the photographs as Appellant’s. The trial court indicated its intent to admit the

photographs for all purposes. Appellant objected generally. The trial court overruled Appellant’s objections “for the

reasons previously stated by the Court in response” thereto. It is apparent from the record that the trial court

understood that Appellant was renewing his previous objections. See Taylor v. State, 939 S.W.2d 148, 155 (Tex.

Crim. App. 1996).

3

the State’s assertion concerning Appellant’s abuse of F.G. is uncontested, we do not agree that it

was helpful to the jury to view pictures of Appellant’s penis so that it could see precisely what

F.G. saw.

However, we are not bound by this underlying rationale for admissibility. See De La Paz,

279 S.W.3d at 344. An underlying theory of Appellant’s defense was based on his assertion that

his sexual abuse of F.G. took place during the six month period preceding her outcry and resulted

from his being intoxicated. Contrary to the limited timeline of abuse asserted by Appellant, F.G.

testified that Appellant regularly sexually assaulted her in her bedroom from 2006 through 2012.

When officers searched Appellant’s house, they discovered, among other things, a $1,200.00

video surveillance system with multiple cameras, one of which was aimed at F.G.’s bed and the

other of which was aimed at the bed in the master bedroom. The system was connected through

the walls to a recording device located in the master bedroom with a monitor that displayed the

various camera feeds. The record reflects that officers were unsuccessful in recovering past

videos recorded by the surveillance system. Nonetheless, the record also supports that Appellant

admitted to having used the surveillance system on one occasion to record his sexual abuse of

F.G.3

Consequently, the pictures recovered from Appellant’s cellular telephone depicting his

wife performing fellatio on him tend to support the State’s theory that Appellant regularly

engaged in voyeurism.4 Therefore, the State’s establishing that Appellant engaged in voyeurism

and used his expensive surveillance system to further that end was helpful to the jury in assessing

Appellant’s punishment because it contradicted his assertion that his sexual abuse of F.G. was

limited to a handful of regrettable encounters as a result of his being intoxicated. Rather, it tends

to show that Appellant invested a substantial sum of money and time installing a video system to

record himself sexually abusing F.G. Accordingly, we conclude that the trial court did not err in

overruling Appellant’s relevance objection to these exhibits.

3

The record reflects that Appellant did not frequently sleep in the master bedroom. But F.G. told the nurse

who examined her that when Appellant would sexually assault her in her bedroom, he would go into the master

bedroom afterward. The jury reasonably could have concluded from this evidence that Appellant went to the master

bedroom on these occasions to watch the video taken of his sexual abuse of F.G.

4

A “voyeur” is a person who derives sexual gratification from observing the sex organs or sexual acts of

others, especially from a secret vantage point. See THE AMERICAN HERITAGE DICTIONARY 1356 (2nd College Ed.

1982).

4

Danger of Unfair Prejudice

We next consider whether the probative value of these photographs is substantially

outweighed by the danger of unfair prejudice to Appellant. We first note that the probative value

of the evidence is high. The jury had a wide range of punishment to consider. See TEX. PENAL

CODE ANN. § 21.02(h) (West Supp. 2014); TEX. GOV’T CODE ANN. § 508.145(a) (West Supp.

2014). And while the thought of Appellant’s committing this act against his daughter is

deplorable in and of itself, evidence tending to support that he did so regularly over a period of

years rather than at random was extremely helpful to the jury in assessing his punishment.5

Furthermore, the State had a significant need for this evidence, particularly in light of the

fact that it was unable to recover any past video from the recording device. Further still, the State

spent a relatively short time developing the evidence during a very brief exchange with Detective

Gregg Roberts concerning the recovery of the pictures and a slightly longer period spent

questioning Appellant’s girlfriend in order to identify the subjects of the photograph.6

As for the exhibits, they are two 8″x10″ color photographs that depict a close-up shot of

Appellant’s wife engaged in an intimate act with her husband’s exposed penis. And despite the

fact that the photographs were taken with a cellular telephone, they are quite detailed.

Nonetheless, the photos do not depict anything particularly “gruesome,” nor do they appear to

depict an illegal act.

Of course, we cannot discount the possibility that these photographs may have potentially

impressed the jury in some irrational way. Indeed, Appellant’s photographing his wife during her

performance of oral sex and the secondary gratification he received from having taken the

photograph might be considered to be repugnant by some jurors. But its potential to impress the

jury in some irrational way was muted given the totality of the evidence. Specifically, Appellant’s

depiction in and possession of this pornographic material was likely to be construed as less

alarming by the jury than the detailed evidence it heard concerning Appellant’s repeatedly

sexually abusing his daughter for six years beginning when she was eight years old. See, e.g.,

5

We are unaware of any alternative evidence the State could have offered to prove Appellant’s proclivity for

voyeurism. In his brief, Appellant suggests an alternative means of permitting the jury to view Appellant’s genitalia

by allowing Appellant to pose for a nonprovocative picture. Of course, Appellant’s suggestion is made in response to

the reasons provided by the State at trial for admitting the photograph and has no bearing on this alternative theory of

relevance.

6

The State’s questioning of Appellant’s girlfriend for this purpose takes place over approximately three

pages of the reporter’s record.

5

Pallm v. State, No. 12-10-00329-CR, 2011 WL 6043025, at *3 (Tex. App.–Tyler Nov. 30, 2011,

pet. ref’d) (mem. op., not designated for publication) (the appellant’s possession of a large cache

of pornographic pictures and videos depicting young girls likely to be construed as less heinous by

jury than detailed evidence it heard concerning the appellant's sexually assaulting an eleven-year-

old girl while his wife slept in a medicated state in same room). Therefore, we hold that the

especially high probative value of the photographic evidence in question is not substantially

outweighed by the danger of unfair prejudice.

Appellant’s first, second, third, and fourth issues are overruled.

CHARGE ERROR - INCREASING CHRONOLOGICAL PERIMETER FOR OFFENSE

In his fifth issue, Appellant argues that the trial court erred “in failing to give instructions

to contextualize the nonbinding date of [the] offense in order to prevent reliance on conduct [that

occurred] outside of the chronological perimeter” for continuous sexual abuse of a child.

Standard of Review

We review claims of jury charge error under the two pronged test set out in Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see Kuhn v. State, 393 S.W.3d

519, 524 (Tex. App.–Austin 2013, pet. ref’d); Swearingen v. State, 270 S.W.3d 804, 808 (Tex.

App.–Austin 2008, pet. ref’d). We first determine whether error exists. Ngo v. State, 175 S.W.3d

738, 743 (Tex. Crim. App. 2005); Swearingen, 270 S.W.3d at 808. If error exists, we next

evaluate the harm caused by the error. See Ngo, 175 S.W.3d at 743; Swearingen, 270 S.W.3d at

808. The degree of harm required for reversal depends on whether that error was preserved in the

trial court. Kuhn, 393 S.W.3d at 524. When error is preserved in the trial court by a timely

objection, the record must show only “some harm.” Almanza, 686 S.W.2d at 171; Swearingen,

270 S.W.3d at 808. By contrast, where no objection is made to charge error, reversal is required

only if the error resulted in “egregious harm.” See Neal v. State, 256 S.W.3d 264, 278 (Tex.

Crim. App. 2008).

Error in the Court’s Charge

The offense of continuous sexual abuse of a young child became effective on September 1,

2007, and the statute does not apply to acts of sexual abuse committed before that date.7 See

Kuhn, 393 S.W.3d at 524. Moreover, the statute does not apply to an offense committed against a

7

Act of May 18, 2007, 80th Leg., R.S., ch. 593, §§ 1.17, 4.01(a), 2007 Tex. Gen. Laws 1120, 1127, 1148.

6

child fourteen years of age or older. See TEX. PENAL CODE ANN. § 21.02(b)(2) (West Supp.

2014). Appellant contends that the jury charge was erroneous because it potentially allowed

jurors to convict him based on acts he committed prior to September 1, 2007, or after November

21, 2011.8 Specifically, in the abstract portion of the charge, the jury was instructed as follows:

You are instructed that the State is not bound by the specific date which the offense, if any,

is alleged in the indictment to have been committed, but that a conviction may be had upon proof

that the offense, if any, was committed at any time prior to the filing of the indictment which is

within the period of limitations. There is no limitation period to the offense of continuous sexual

abuse of a child.

This instruction is erroneous. See, e.g., Kuhn, 393 S.W.3d at 524; Martin v. State, 335 S.W.3d

867, 876 (Tex. App.–Austin 2011, pet. ref’d).

Egregious Harm Analysis

Because Appellant did not object to this instruction, we apply the “egregious harm”

standard wherein reversal is required only if the charge error was “so egregious and created such

harm that the defendant has not had a fair and impartial trial.” Barrios v. State, 283 S.W.3d 348,

350 (Tex. Crim. App. 2009); Almanza, 686 S.W.2d at 171. In determining whether an appellant

was deprived of a fair and impartial trial, we review the entire jury charge, the state of the

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

counsel, and any other relevant information revealed by the record of the trial as a whole. See

Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011); Almanza, 686 S.W.2d at 171. We

will examine any part of the record that may illuminate the actual, not just theoretical, harm to the

accused. See Taylor, 332 S.W.3d at 489–90; Kuhn, 393 S.W.3d at 525. Errors which result in

egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable

right, vitally affect the defensive theory, or make a case for conviction clearly and significantly

more persuasive. See Taylor, 332 S.W.3d at 490. Egregious harm is a difficult standard to prove

and such a determination must be done on a case-by-case basis. See Hutch v. State, 922 S.W.2d

166, 171 (Tex. Crim. App. 1996).

The Court’s Charge

Based on our review of the entirety of the court’s charge, we first note that the application

paragraph, which immediately precedes the erroneous abstract paragraph, correctly instructed the

jury that to convict Appellant, it must find beyond a reasonable doubt that he,

8

F.G.’s fourteenth birthday was November 22, 2011.

7

during a period that was 30 or more days in duration, to-wit: from on or about September 1, 2007

through November 21, 2011, when the defendant was 17 years of age or older, commit two or more

acts of sexual abuse against a child younger than 14 years of age.

As a result, the application paragraph mitigates against finding that any error in the abstract

portion of the charge was egregious. See Kuhn, 393 S.W.3d at 529–30; see also Medina v. State,

7 S.W.3d 633, 640 (Tex. Crim. App. 1999). Moreover, similar to the charge in Kuhn, the first

paragraph of the charge in the instant case correctly instructed the jury that the offense was

alleged to have been committed from on or about September 1, 2007, through November 21,

2011. Lastly, the trial court included in the charge as Paragraph 11 the following limiting

instruction in the precise language requested by Appellant:

You are instructed that if there is any testimony before you in this case regarding the

defendant’s having committed offenses other than the offense alleged against him in the indictment

in this case, you cannot consider said testimony for any purpose unless you find and believe beyond

a reasonable doubt that the defendant committed such other offenses, if any were committed[,] and

even then[,] you may only consider the same in determining the motive, opportunity, intent,

preparation, plan, knowledge, identity of the defendant or absence of mistake or accident, if any, in

connection with the offense, if any, alleged against him in the indictment in this case, and for no

other purpose.

See Kuhn, 393 S.W.3d at 530 (considering trial court’s use of detailed limiting instruction in jury

charge concerning evidence of uncharged offenses or bad acts). Our reading of the charge as a

whole weighs against a conclusion that Appellant was denied a fair and impartial trial. See id.

Argument of Counsel

Based on our review of the arguments of counsel, we note that the prosecuting attorney

emphasized the long term nature of Appellant’s sexual abuse of F.G. However, during his closing

argument, he sought briefly to denote the distinction between the charged acts and the acts

occurring outside the time frame as follows:

When did it begin? 2006. And, see, you’re entitled to know about everything. You're

entitled to know about when it started and when it ended, because it shows his intent, it shows his

common scheme and plan, it shows his motivation. And, you know, motivation is real simple. For a

child molester, for a filthy child molester, real simple: It's a kid, fair game, period. And it goes to

establish, you know, his state of mind.

So that's why you're entitled to know about the start date and the end date.

8

Previously, during voir dire, the prosecuting attorney gave the jury a more specific explanation of

the requirements for convicting Appellant as charged. There, he informed the venire panel as

follows:

We have to prove that the defendant was older than 17. We have to prove that the victim

was younger than 14. And we have to prove that it was [F.G.]

And all that’s required is that we prove two or more acts from a duration of 30 days or

more, okay? If you have one act on day one and one act on day 31, done. Between September the

1st, 2007 through November the 21st, 2011. . . .

....

I’ve just got to show you two acts between September the 1st 2007, and November the 21st, 2011,

and they’ve got to be over 30 days apart.

Finally, during closing argument, the prosecuting attorney directed the jury’s attention to the

effective date of the statute, the correctly worded application paragraph, and the significance of

the dates alleged in the indictment. He informed the jury that

[w]e have to prove that the defendant, whom she identified, had sex with her, had continuous sex

with her from September the 1st of 2007 through November the 21st, 2011.

And let me tell you what the evidence shows. The evidence shows that he began preying

on her innocence in 2006, okay? It never ended. It never ended until March of 2012. She told --

she gave her outcry on March the 5th of 2012. So what is important here -- when you look at

September 1st of 2007, okay, and ending November the 21st of 2011, there are several elements

that are met here. And why these dates are important is because of this: On September the 1st of

2007, that's when the statute was enacted. So all the acts that occurred -- every time -- twice a

week, you do the math -- he committed the offense of aggravated sexual assault of a child from

2006 to 2012 hundreds and hundreds and hundreds of times on her.

....

So he was sexually penetrating her with his penis, with his fingers, from 2006 through

2012.

Now, why stop at November the 21st, 2011? Well, that's her -- the next day is her

birthday. See, she turns 14 after 2011. So right here she's under the age of 14, and he's obviously

over the age of 17.

....

Did he rape her in Smith County, Texas? Absolutely.

Is his name Cesar Gomez? Yes, it is.

Did he rape her for a duration of 30 days or more between September the 1st, 2007 through

November the 21st, 2011? Yes, he did.

9

Is he older than 17? Yes, he is.

Did he do it two or more times? Absolutely, period.

In Kuhn, the court considered a similar set of circumstances. See id. at 530–31.

However, unlike the facts of the instant case, when the prosecuting attorney in Kuhn emphasized

instances of sexual abuse that occurred prior to the enactment of the statute, he did not make any

effort to denote for the jury the distinction between the charged acts and the acts occurring outside

the time frame. See id. at 531. Nonetheless, the court concluded that this factor did not weigh

heavily in favor of finding egregious harm because (1) there were multiple other instances where

the prosecuting attorney informed the jury of the correct time frame it should consider, (2) the

abuse that occurred prior to the effective date of the statute could permissibly be considered by the

jury as circumstantial evidence of the abuse that occurred after the effective date of the statute,

and (3) the jury charge contained a limiting instruction prohibiting the jury from considering the

uncharged abuse for impermissible purposes. See id. Accordingly, we likewise conclude that the

State’s emphasis in its argument to the jury of the long term period of sexual abuse does not

weigh heavily in favor of our concluding that Appellant was denied a fair and impartial trial.

The State of the Evidence

The jury heard substantial evidence that Appellant regularly sexually abused F.G. from

2006 until March 5, 2012. F.G. testified that Appellant sexually abused her at least twice per

week during this time frame. F.G. did not provide specific date references in her testimony. But

her statements were clear that Appellant regularly sexually abused her during this time frame.

And although Appellant objected to testimony concerning his sexually abusing F.G. before the

effective date of the statute, her testimony concerning whether he sexually abused her during the

relevant period was not heavily contested.

Among Appellant’s defensive theories at trial was his assertion that his sexual abuse of

F.G. was limited to a handful of regrettable encounters as a result of his being intoxicated.

Specifically, Appellant stated to investigators that this abuse was infrequent over a six month

period in late 2011 through early 2012.9 But similar to F.G.’s testimony, Appellant failed to

provide any specific date references.

9

Appellant made this statement during his interview on March 5, 2012.

10

The jury was entitled to disbelieve Appellant and rely on F.G.’s testimony alone to

determine the time period of her abuse. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp.

2014) (conviction under Penal Code, Chapter 21 is supportable on uncorroborated testimony of

child victim alone); Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978);

Ozuna v. State, 199 S.W.3d 601, 606 (Tex. App.–Corpus Christi 2006, no pet.). Or, it could have

considered the fact that Appellant’s purported timeline overlaps the relevant time period, albeit

only by a couple of months. And although the jury could not lawfully convict Appellant for

continuous sexual abuse based on his conduct prior to September 1, 2007, or after November 21,

2011, it could consider this conduct as circumstantial evidence of Appellant's conduct between

September 1, 2007, and F.G.’s fourteenth birthday. See Martin, 335 S.W.3d at 876.

Based on our review of the record, we cannot conclude that the jury was unable to infer

that at least two acts of abuse occurred between September 1, 2007, and November 21, 2011,

simply because the State did not elicit more detailed testimony from the child victim. See Kuhn,

393 S.W.3d at 529. Therefore, we conclude that the state of the evidence in the instant case

weighs heavily against a conclusion that Appellant was denied a fair and impartial trial. See id.

Summation

Having considered the entirety of the jury charge, the argument of counsel, and the state of

the evidence, we conclude that these factors, considered together, do not weigh in favor of a

conclusion that Appellant was denied a fair and impartial trial. Accordingly, we hold that

Appellant did not suffer egregious harm.

Appellant’s fifth issue is overruled.

INDICTMENT

In his sixth, seventh, and eighth issues, Appellant argues that the trial court committed

various errors stemming from its attempt to amend the indictment. Specifically, Appellant

contends that (1) the trial court erred in proceeding to trial on an indictment that did not allege

continuous abuse, (2) erred in submitting continuous abuse to the jury when it was not alleged in

the indictment, and (3) erred in failing to construe the verdict as a conviction for aggravated

sexual assault of a child.

11

Governing Law

A criminal defendant is guaranteed the right to know the allegations against him contained

in an indictment returned by a grand jury and to have a copy of the indictment. TEX. CONST. art. I,

§ 10. An indictment vests the trial court with jurisdiction and provides the defendant with notice

of the offense with which he is charged so that he may prepare, in advance of trial, an informed

and effective defense. Riney v. State, 28 S.W.3d 561, 565 (Tex. Crim. App. 2000);

Westmoreland v. State, 174 S.W.3d 282, 286 (Tex. App.–Tyler 2005, pet. ref’d).

Texas Code of Criminal Procedure, Article 28.10 prescribes the following procedure for

amending an indictment:

(a) After notice to the defendant, a matter of form or substance in an indictment or information may

be amended at any time before the date of the trial on the merits commences. On the request of the

defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested

by the defendant, to respond to the amended indictment or information.

....

(c) An indictment or information may not be amended over the defendant's objection as to form or

substance if the amended indictment or information charges the defendant with an additional or

different offense or if the substantial rights of the defendant are prejudiced.

TEX. CODE CRIM. PROC. ANN. art. 28.10(a), (c) (West 2006). All amendments of an indictment or

information must be made with leave of the court and under its direction. Id. art. 28.11.

Prior to 2000, the recognized procedure for amending an indictment required the state to

either return to the grand jury to obtain a subsequent indictment or request an amendment of the

indictment through a motion to the court. Westmoreland, 174 S.W.3d at 286. The motion to

amend the indictment, taken together with the trial court’s granting of the motion to amend and

signing the order on the amendment, comprised the authorization for the eventual amendment of

the charging instrument pursuant to Article 28.10. See Ward v. State, 829 S.W.2d 787, 793 (Tex.

Crim. App. 1992). The Ward court noted that “amend” means an actual alteration of the charging

instrument itself. Id. The amendment, then, was the actual alteration of the charging instrument.

Id. Consequently, where the State moved to amend the indictment and the trial court granted the

motion, the court physically interlineated the changes on the original indictment. See id. at 793–

94.

In 2000, the court of criminal appeals addressed whether it was necessary to physically

interlineate the changes in order to amend an indictment. See Riney, 28 S.W.3d at 564. In Riney,

12

the court overruled Ward and the cases relying on it, to the extent they required physical

interlineation of the original indictment as the only means to amend an indictment. See id. at 566.

The court emphasized that the amended indictment was where the defendant could find notice of

the specific charges against him in order to prepare his defense. Id. Therefore, the court held, the

“physical interlineation of the original indictment is an acceptable, but not the exclusive means,”

of amending an indictment. Id. at 565–66.

Amendment of the Indictment

In the case at hand, the original indictment alleged that the offense commenced on or

about August 15, 2007. On November 2, 2012, the State filed a motion to amend the indictment

to change the beginning date of the alleged offense to September 1, 2007. The trial court orally

granted the State’s motion at a pretrial hearing on February 1, 2013. Appellant did not object to

the proposed amendment during the hearing. The trial court signed a written order granting the

motion later that day. On Saturday, February 2, 2013, the trial court interlineated the indictment

to change the beginning date of the offense to September 1, 2007. The interlineated indictment

was forwarded to this court as part of a supplemental clerk’s record. See, e.g., Bolton v. State,

No. 06-11-00268-CR, 2012 WL 5507404, at *5 n.1 (Tex. App.–Texarkana 2012, Nov. 14, 2012,

pet. ref’d) (mem. op., not designated for publication). Further, the prosecuting attorney read the

amended indictment into the record before the jury at the outset of trial, and Appellant entered his

plea of “not guilty” to the amended indictment without making an objection. See, e.g., Barrera v.

State, 321 S.W.3d 137, 145 (Tex. App.–San Antonio 2010, pet. ref’d). Further still, the court’s

charge tracked the amended indictment. See id. And although the jury stated in its verdict that it

found Appellant “guilty” as charged “under the indictment” rather than “under the [amended]

indictment,” it is reasonable to conclude that the jury was acting in accordance with the

description of the offense as charged in the amended indictment based on the introductory

paragraph in the charge setting forth the indictment allegations consistent with the amended

indictment. Cf. Murphy v. State, 44 S.W.3d 656, 665 (Tex. App.–Austin 2001, no pet.) (purpose

of jury charge is to inform the jury of applicable law and guide it in application of law to case;

absent evidence to contrary, we presume jury followed law provided by charge). Moreover,

Appellant never filed a motion to quash the amended indictment10 and did not object to proceeding

10

Appellant filed a motion to quash the original indictment at some point in 2012. That motion is included

in a supplemental clerk’s record. The basis of this motion is unrelated to the alleged date on which the offense

13

to trial based on the amended indictment. See, e.g., Barrera, 321 S.W.3d at 145. Finally, it is

apparent that Appellant had actual notice of the proposed amendment to the indictment well in

advance of trial, never objected to the amendment, and was tried and convicted on the amended

indictment. See id.

Based on the foregoing, we conclude that the record supports that an effective amendment

was made to the indictment to allege continuous sexual abuse. See id. Accordingly, we hold that

the trial court did not err in proceeding to trial on this amended indictment, in submitting

continuous sexual abuse to the jury on that basis, or in rendering the verdict as a conviction based

on the allegations in the amended indictment. Appellant’s sixth, seventh, and eighth issues are

overruled.

JUDGMENT NUNC PRO TUNC

In his ninth issue, Appellant argues that the trial court’s judgment nunc pro tunc is void

because he had already filed his notice of appeal. In his tenth issue, Appellant argues that the

judgment nunc pro tunc improperly corrected a judicial error. In his eleventh issue, Appellant

contends that the trial court violated his right to due process by changing the date of the offense in

its judgment nunc pro tunc without Appellant’s being present.

The trial court signed its judgment on February 6, 2013. That judgment set forth that the

offense commenced on August 15, 2007. On February 26, 2013, the trial court entered a

judgment nunc pro tunc, without Appellant’s being present, in which it revised the date of the

offense to September 1, 2007.

Governing Law

The Latin phrase “nunc pro tunc” means “now for then” and describes the inherent power

a court possesses to make its records speak the truth. Smith v. State, 15 S.W.3d 294, 298 (Tex.

App.–Dallas 2000, no pet.). In other words, use of a judgment nunc pro tunc permits the court to

correct now what the record reflects had already occurred at a time in the past. See Silva v. State,

989 S.W.2d 64, 66 (Tex. App.–San Antonio 1998, pet. ref’d); State v. Garza, 824 S.W.2d 324,

325 (Tex. App.–San Antonio 1992, pet. ref'd).

The purpose of a nunc pro tunc order is to correctly reflect in the records of the trial court

the judgment it actually made, but which for some reason was not entered of record at the proper

commenced. Rather, it is based on Appellant’s contentions that evidence relied upon by the State supports that any

offense committed by Appellant occurred after F.G.’s fourteenth birthday.

14

time. Smith, 15 S.W.3d at 298; Creeks v. State, 807 S.W.2d 853, 854 (Tex. App.–Dallas 1991,

pet. ref’d), overruled on other grounds, Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.–Dallas

1991, pet. ref'd). Therefore, before a judgment nunc pro tunc may be entered, there must be proof

the proposed judgment was actually rendered or pronounced at an earlier time. See Collins v.

State, 240 S.W.3d 925, 928 (Tex. Crim. App. 2007); Jones v. State, 795 S.W.2d 199, 201 (Tex.

Crim. App. 1990); Wilson v. State, 677 S.W.2d 518, 521 (Tex. Crim. App. 1984); Dickson v.

State, 988 S.W.2d 261, 263 (Tex. App.–Texarkana 1998, pet. ref'd); Garza, 824 S.W.2d at 325. A

judgment nunc pro tunc is improper when it has the effect of making a new or independent order.

Smith, 15 S.W.3d at 299 (citing Ex parte Dickerson, 702 S.W.2d 657, 658 (Tex. Crim. App.

1986)). The nunc pro tunc entry may be made to correct a judgment to properly reflect the actual

order but may not be used to modify or add provisions to an order previously entered. Smith, 15

S.W.3d at 299. A correction can be made to reflect what actually happened at trial by entry of a

nunc pro tunc judgment, “but correction can be only as to what was done and not as to what

should have been done.” Ex parte Dopps, 723 S.W.2d 669, 671 (Tex. Crim. App. 1986); Chaney

v. State, 494 S.W.2d 813, 814 n.1 (Tex. Crim. App. 1973).

A judgment nunc pro tunc may correct only clerical errors in a judgment, not judicial

omissions or errors. State v. Gobel, 988 S.W.2d 852, 853 (Tex. App.–Tyler 1999, no pet.);

Jiminez v. State, 953 S.W.2d 293, 295 (Tex. App.–Austin 1997, pet. ref’d). A clerical error is

defined as one that does not result from judicial reasoning or determination. See Collins, 240

S.W.3d at 928; State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994). Whether the error is

judicial or clerical depends on the nature of the error, not on who made the error. Jiminez, 953

S.W.2d at 295; Curry v. State, 720 S.W.2d 261, 262 (Tex. App.–Austin 1986, pet. ref’d). Thus,

the correction of a clerical error is only a process to insure that the record truthfully reflects what

actually occurred. This “correction process” does not allow for or permit readjudication or the

reopening of a controversy. Smith, 15 S.W.3d at 299. The determination of whether an error is

clerical or judicial in nature is a question of law. As such, the trial court's findings and

conclusions are not binding on an appellate court. Id.

Propriety of Judgment Nunc Pro Tunc

In the instant case, in its judgment nunc pro tunc, the trial court changed the date of the

offense from August 15, 2007, to September 1, 2007. By changing the date of the offense, the

trial court’s judgment correctly reflected in the records of the trial court the judgment it actually

15

rendered. As set forth previously, the amended indictment set forth the commencement date for

the charged crime as September 1, 2007. This commencement date for the offense was read to

Appellant before the jury at the outset of trial and is set forth in the court’s charge. The jury found

Appellant “guilty” of continuous sexual abuse of a child under fourteen years of age based on this

amended indictment, and the trial court pronounced Appellant’s “guilt” and his sentence for this

offense on the record. Accordingly, we hold that the trial court’s judgment nunc pro tunc served

to correct a clerical error. Appellant’s tenth issue is overruled.

Timeliness of Judgment Nunc Pro Tunc

Appellant filed his notice of appeal on February 6, 2013. The trial court entered its

judgment nunc pro tunc on February 26, 2013. The entry of a nunc pro tunc order prior to the

date that the appellate record is filed does not present error. See Ware v. State, 62 S.W.3d 344,

353–54 (Tex. App.–Fort Worth 2001, pet. ref’d); see also Perkins v. State, 505 S.W.2d 563, 564

(Tex. Crim. App. 1974); cf. TEX. R. APP. P. 25.2(g) (in a criminal case, once record has been filed

in appellate court, all further proceedings in trial court––except as provided otherwise by law or

these rules––will be suspended until trial court receives appellate court mandate).

Here, the trial court’s judgment nunc pro tunc was entered prior to the filing of the

appellate record. Accordingly, we hold that it was not untimely. Appellant’s ninth issue is

overruled.

Ex Parte Change to Judgment Nunc Pro Tunc

The purpose of a nunc pro tunc order is to have the court records correctly reflect a

judgment actually rendered by the trial court. Lancaster v. State, 324 S.W.3d 217, 228 (Tex.

App.–Waco 2010, pet. ref’d); see Jones v. State, 795 S.W.2d 199, 202 (Tex. Crim. App. 1990);

McGinnis v. State, 664 S.W.2d 769, 770 (Tex. App.–Amarillo 1983, pet. ref'd). The court of

criminal appeals has said that before any unfavorable nunc pro tunc orders are entered, the person

convicted should be given an opportunity to be present for the hearing and represented by counsel

in order to accord him due process of law. See Shaw v. State, 539 S.W.2d 887, 890 (Tex. Crim.

App. 1976). But in a subsequent opinion, the court has stated that if the trial court properly

changed its order, remanding for a hearing would be a “useless task.” Homan v. Hughes, 708

S.W.2d 449, 454–55 (Tex. Crim. App. 1986); Lancaster, 324 S.W.3d at 218.

In the instant case, assuming arguendo that the clerical correction made by the trial court

in its judgment nunc pro tunc was “unfavorable” to Appellant, we hold that remanding the matter

16

for a hearing regarding this proper change to the judgment would be a “useless task.” See

Homan, 708 S.W.2d at 454–55 (Tex. Crim. App. 1986); Lancaster, 324 S.W.3d at 218; see also

Popp v. State, No. 10-03-00263-CR, 2004 WL 2306635, at *1–2 (Tex. App.–Waco Oct. 13, 2004,

pet. ref’d (mem. op., not designated for publication). Appellant’s eleventh issue is overruled.

MIRANDA WARNINGS

In his twelfth issue, Appellant argues that the trial court erred in finding at the hearing on

his motion to suppress that the interrogator complied with the oral confession statute when he told

Appellant that his right to appointed counsel did not become effective until after he was

interviewed.

Standard of Review

We review a trial court’s ruling on a motion to suppress under an abuse of discretion

standard. Elizondo v. State, 382 S.W.3d 389, 393 (Tex. Crim. App. 2012). When the trial court’s

findings of fact are based on an evaluation of credibility and demeanor, we afford almost total

deference to the trial court's determination of facts that are supported by the record. Id. We

review de novo the trial court’s application of the law to the facts and uphold the trial court’s

ruling if it is supported by the record and is correct under any theory of law applicable to the case.

Id. at 393–94 (citing State v. Ross, 32 S.W.3d 853, 855–56 (Tex. Crim. App. 2000)).

Preservation of Error

The State argues that Appellant failed to raise this specific contention in his written motion

to suppress or during his argument to the trial court on his motion to suppress. Where a motion to

suppress makes broad arguments under the confession statute11 and otherwise fails to bring the

specific matter to the trial court’s attention that an appellant later seeks to raise on appeal, error is

not preserved. See Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009). Moreover,

when considering argument on a motion to suppress, “a complaint that could, in isolation, be read

to express more than one legal argument will generally not preserve all potentially relevant

arguments for appeal.” Id. Only when there are clear contextual clues indicating that the party

was, in fact, making a particular argument will that argument be preserved. Id.

In the instant case, Appellant argued in his motion to suppress, in pertinent part, as

follows:

11

See TEX. CODE CRIM. PROC. ANN. art. 38.22 (West Supp. 2014).

17

2. The actions of the Tyler Police Department violated the constitutional and statutory

rights of the Defendant under the Fourth, Fifth, Sixth[,] and Fourteenth Amendments to the United

States Constitution, Article I, Section 9 of the Texas Constitution, and under Article 38.23 of the

Texas Code of Criminal Procedure.

3. Any statements obtained from Cesar Gomez were obtained in violation of Article 38.22

of the Texas Code of Criminal Procedure and in violation of the rights of Cesar Gomez pursuant to

the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution [and] Article

I, Sections, 9, 10[,] and 19 of the Constitution of the State of Texas.

At trial, Appellant urged his motion to suppress and stated the basis of his argument as follows:

Judge, just so we can expedite this, what I'm going to do is urge the motion. I'm going to

tell the Court that I believe that there are indications on what the State's going to admit into

evidence that Mr. Gomez had -- was asked about drinking, he indicated he had been drinking; he'd

been drinking a lot. And I believe that -- and I'm going to urge the motion based on him not being

aware of what he was doing when he waived his Miranda rights.

Appellant’s written motion to suppress is insufficient in itself to preserve for appeal the

specific argument that Roberts told Appellant that his right to appointed counsel did not become

effective until after he was interviewed. See id. Article 38.22 contains a number of subsections

that could have been applicable to Appellant's videotaped statement. See id. And Appellant’s

statements at the hearing on the motion to suppress did nothing to bring the trial court’s attention

to the issue he now seeks to raise. Therefore, we hold that Appellant failed to preserve error

because his argument to the trial court does not comport with the argument he now makes on

appeal. See id.; Rothstein v. State, 267 S.W.3d 366, 373 (Tex. App.–Houston [14th Dist.] 2008,

pet. ref’d) (defendant’s appellate contention must comport with specific assertions made in motion

to suppress; motion to suppress stating one legal theory may not be used to support different legal

theory on appeal); see also TEX. R. APP. P. 33.1.

Miranda Warnings not Vitiated by Subsequent Erroneous Statement

Even if we assume arguendo that Appellant preserved the issue he now seeks to raise, the

outcome would not change. At the interview, Tyler Police Officer Edgar Zapata, a translator,

gave Appellant his Miranda warnings12 in Spanish. At the hearing on Appellant’s motion to

suppress, Zapata testified that he gave Appellant his Miranda warnings and Appellant understood

what was said to him. Zapata further testified that Appellant waived his Miranda rights, and

12

See Miranda v. Arizona, 384 U.S.436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

18

agreed to be interviewed. Zapata stated that Appellant understood what he was doing when he

waived his Miranda rights.

The basis of Appellant’s argument concerns Roberts’s statement after Appellant had been

read his Miranda rights. Specifically, Roberts asked Zapata to tell Appellant that “a lawyer can

be appointed for him by the court at a later time.” However, in the next breath, Roberts stated, “If

he wants to continue speaking to us without an attorney––and it’s entirely his choice––he can stop

at any time he becomes uncomfortable.” Roberts next asked if the translator was confident

Appellant understood his rights and was “okay continuing without an attorney understanding that

he can stop at any time.” The translator relayed the message to Appellant, who responded, “Yes,

why not?”

The addition of an erroneous statement does not vitiate an otherwise correct Miranda

warning. United States v. Harrell, 894 F.2d 120, 125 (5th Cir. 1990). The test of whether

Miranda has been satisfied is whether the warning reasonably conveys to a suspect his rights. Id.

(citing Duckworth v. Eagan, 492 U.S. 195, 202, 109 S. Ct. 2875, 2880, 106 L. Ed. 2d 166

(1989)). In Duckworth, the Court scrutinized a warning that met Miranda’s basic formula, but in

the context of an additional statement that “[w]e have no way of giving you a lawyer, but one will

be appointed for you, if you wish, if and when you go to court.” Id., 492 U.S. at 197–98, 109 S.

Ct. at 2877. The Court held that the superfluous language did not render an otherwise valid

warning defective. Id., 492 U.S. at 201, 109 S. Ct. at 2879. That is to say, there is not one

singularly correct form of Miranda warnings. Harrell, 894 F.2d at 125.

Here, the record indicates that Zapata reasonably conveyed the Miranda warnings to

Appellant. Even if we overlook the fact that Roberts immediately clarified his erroneous

statement, the addition of this erroneous statement does not require suppression of Appellant’s

statements given in the interview. Id.

Appellant’s twelfth issue is overruled.

ISSUES THIRTEEN AND FOURTEEN WITHDRAWN AS MOOT

In his thirteenth issue, Appellant argues that he is entitled to a new trial if the video of his

confession remains unviewable. In his fourteenth issue, Appellant argues that he is entitled to a

new trial if the file marked copy of his motion to quash cannot be included in the record.

19

In his reply brief, Appellant elected to withdraw his thirteenth issue if the video of his

interview with investigators submitted by the State as part of a supplemental clerk’s record was

viewable in addition to the audio. After installing a video codec supplied by the State in

conjunction with this video evidence, we were able to view the video along with the audio of

Appellant’s interview.

Additionally, in his reply brief, Appellant agrees to withdraw his fourteenth issue because

a stipulated copy of his Motion to Quash and Exception to Substance of Indictment was included

in a supplemental clerk’s record.

Because Appellant has withdrawn these issues, we do not address them. See TEX. R. APP.

P. 47.1.

DISPOSITION

Having overruled Appellant’s issues one through twelve, we affirm the trial court’s

judgment.

BRIAN HOYLE

Justice

Opinion delivered January 21, 2015.

Panel consisted Worthen, C.J., and Hoyle, J.

(PUBLISH)

20

COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JANUARY 21, 2015

NO. 12-13-00050-CR

CESAR GOMEZ,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 241st District Court

of Smith County, Texas (Tr.Ct.No. 241-0529-12)

THIS CAUSE came to be heard on the appellate record and briefs filed

herein, and the same being considered, it is the opinion of this court that there was no error in the

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment

of the court below be in all things affirmed, and that this decision be certified to the court

below for observance.

Brian Hoyle, Justice.

Panel consisted of Worthen, C.J., and Hoyle, J.