Affirmed as Modified and Opinion Filed November 4, 2022 

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### Court of Appeals Fifth District of Texas at Dallas No. 05-21-00319-CR MARCELINO LOPEZ-MA RTINEZ, Appellant V. THE STATE OF TE XAS, Appellee On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause No. 199-83185-2020 MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Nowell Opinion by Justice Partida-Kipness Appellant Marcelino Lopez-Martinez ap peals his conviction for continuous sexual assault of a child. In three appellate issues, Lop ez-Martinez contends (1) the judgment is incorrect by stating he waived hi s right to appeal; (2) the trial court erred by allowing the State to ask leading questi ons to the complaining witness; and (3) the evidence was insufficient to prove the acts were committed thirty days or more apart. We affirm as modified.–2– PROCEDURAL HISTORY Lopez-Martinez was indicted for conti nuous sexual assault of a child based on allegations that he abused hi s former girlfriend’s daughter, G.Z. 1 See T EX

. P ENAL C ODE § 21.02. The indictment alleged that on or about Octobe r 15, 2016 through March 1, 2018, Lopez-Martinez, during a period of thirty days or more, committed two or more sexual acts, namely aggravated sexual assault and/or indecency with a child by sexual contact, agai nst G.Z., a child under the age of fourteen. LopezMartinez pleaded not guilty and proceede d to trial. A jury found Lopez-Martinez guilty of the charged offense and sentenced him to forty years' imprisonment. This appeal followed.
BACKGROUND G.Z.’s mother, M.Z., was first made aw are of the abuse following a family party in March 2017, where G.Z. was seen inappropriately touching her cousin. Following that incident, G.Z. admitted to her mother that Lopez-Martinez had assaulted her. At trial, M. Z. testified she had dated L opez-Martinez, but they ended their relationship prior to G.Z.’s outcry. M. Z. stated she noticed G.Z.’s personality changed midway through the relationship, but was unawa re as to why. Although G.Z. told M.Z. about the abuse in 2017, M. Z. waited to file a police report until December 2018. M.Z. stated she waited to make a police report because G.Z. did not

1 To protect the identity of the minor complainant and any child witnesses, we use initials or pronouns to identify G.Z. See T EX

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. P. 9.8(b)(2).–3– want her to go to the police, M.Z. wanted G.Z. to have the dates “straight,” and G.Z. was not in a “good emotional state” at th e time she made her outcry. M.Z. also explained she wanted to wa it until her divorce from G.Z.’s father was final so he could not try to gain custody of G.Z. Afte r her divorce was finali zed in August 2018, M.Z. reported the abuse to th e police in December 2018. Eligio Molina, the forensic superv isor for the Collin County Children’s Advocacy Center (CAC), testified both as an expert witness and as the outcry witness 2 regarding his interview with G. Z. Molina testified he conducted a “minimally informed interview” of G.Z. in January 2019, when she was ten years old. Molina explained a “minimally inform ed interview” meant he would know the type of allegation made by the child but no a dditional facts prior to the start of the interview. He described G.Z. as crying and emotional before she entered the interview room and throughout the in terview. Molina also explained G.Z.’s demeanor would change depending on the topic of conversation: she was happy when describing things she enjoyed and would start crying when talking about the abuse. He was concerned by how traumatized G.Z. seemed and did not see signs of coaching regarding the abuse. G.Z. relayed three instances of abuse during the interview with Molina. She talked about one instance wh ere Lopez-Martinez and M.Z. were in the kitchen and

2 An outcry witness may testify regarding hearsay st atements from a child complainant regarding sexual abuse when properly designated by the trial court. See T EX

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. P ROC . art. 38.072.–4– Lopez-Martinez came to her bedroom. G.Z. said Lopez-Martinez touched her “toward the middle of her tissue, which was what she called her female sexual organ.” She explained Lopez-Martinez used his fingers and “he went underneath her underwear and touched her on the skin with his fingers,” moving in a circular motion. G.Z. tried to move his arm away from her, and Lopez-Ma rtinez asked her in Spanish, “What are you doing?” She told hi m to “get off” of her and he stopped because M.Z. called for him from the k itchen. Molina said G.Z. thought she was eight or nine years old when this happened and it was in the fall. Molina testified to another incident G.Z. recalled where she was home alone and Lopez-Martinez was there to paint a ba throom. M.Z. had left to pick up food and G.Z. was watching televisi on in her room. Lopez-Mar tinez came into her room and pulled down her pants a nd underwear to her mid-thi gh. He began touching her “tissue” with his fingers and then bega n licking her “tissue” with his tongue. G.Z. told Molina she was “grossed out.” Lopez-Ma rtinez stopped because he heard G.Z.’s brother return from school and open the front door. She recalled that time LopezMartinez told her not to tell M.Z., and sh e was “too scared to tell anyone” because “she thought they would make fun of her.” Molina testified G.Z. described a third incident that she thought happened when she was eight years old and in the fall. G.Z. remembered being on the sofa, reading a book, when Lopez-Martinez came and touched her on her “tissue” with his fingers. She got up and went to the bathroom to get him to stop.–5– G.Z. testified at trial to the same three incidents Molina described. She agreed M.Z. did not go to the police right away be cause G.Z. did not want her to. She stated she did not tell her father because she had s een her parents fight before and felt “none of this would have happened” to he r had her father not left them.
ANALYSIS Lopez-Martinez brings three issues on appeal. First, he complains the judgment incorrectly states he waived hi s right to appeal. Next, he asserts the evidence was insufficient to show the inci dents of abuse occurred more than thirty days apart. Finally, he argue s the trial court erred by allo wing the State to ask leading questions of G.Z. We will address hi s substantive complaints first.
I. Sufficiency of the Evidence Lopez-Martinez asserts the evidence doe s not support the finding that the incidents in question happened more than thirty days apart, as required by the continuous sexual assault statute. We revi ew a sufficiency challenge by considering all of the evidence in the light most favorable to the verd ict and determine, whether, based on the evidence and reasonable infere nces therefrom, a rational jury could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 318—19 (1979); Brooks v. State , 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). As the reviewing cour t, we defer to the jury in undertaking their responsibility to “‘fairly resolve c onflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’” Williams v.–6– State , 235 S.W.3d 742, 750 (Tex. Cr im. App. 2007) (quoting Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). The Court balances th is deference to the jury with our duty to ensure the evidence “a ctually supports a conclusion that the defendant committed the cr ime that was charged.” Williams , 235 S.W.3d at 750. We resolve evidentiary inconsistenc ies in favor of the verdict. Curry v. State , 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). A person seventeen years or older commi ts the offense of continuous sexual assault 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” against a child younger than fourteen years of age. T EX

. P ENAL C ODE § 21.02(b)(1). Lopez-Martinez does not dispute the evidence is legally sufficient to show both he and G.Z. were the required ages during the time period in question or that he comm itted “two or more acts of sexual abuse” against G.Z. Id . § 21.02(b)(1). He argues the evidence is legally insufficient to prove that he committed two or more acts of se xual abuse “during a pe riod that is 30 days or more in duration.” Id . We disagree. G.Z. and Molina testified regarding thre e incidents of abuse and G.Z. stated all three incidents occurred when she was ei ght and nine years ol d. G.Z. recalled one incident occurred in November when she was eight years old, another occurred “in the fall,” and the third incident occurred in “the spring.” A reasonable juror could have inferred that the incidents occurred ove r a span of more than thirty days by G.Z.’s statements that one incident happe ned in the fall and one happened in the–7– spring. See Williams , 235 S.W.3d at 750. Moreover, th e State “need not prove the exact dates of abuse, only that there were two or more acts of sexual abuse that occurred during a period that was thirty or more days in duration.” Buxton v. State , 526 S.W.3d 666, 676 (Tex. App.—H ouston [1st Dist.] 2017, pe t. ref’d). “[M]embers of the jury are not required to agree una nimously on which specific acts of sexual abuse were committed by the defendant or the exact da te when those acts were committed.” T EX

. P ENAL C ODE § 21.02(d). Although G.Z. wa s not specific as to her age at the time of each incident, it is the “p rovince of the jury to resolve conflicts in the evidence, and the jury may reject any pa rt or all of a witness’s testimony in order to reconcile conflicts.” Pelcastre v. State , No. 14-21-00449-CR, –––S.W.3d–––, –– –, 2022 WL 10208147, at *2 (Tex. App.—Hous ton [14th Dist.] Oct. 18, 2022, no pet. h.). Here, the jurors were informed of G.Z.’s date of birth and could have estimated when the abuse occurred from her da te of birth and testimony that all three incidents occurred when she was eight and nine years old. Under this record, we conclude the evidence was sufficient to support the findings that Lopez-Martinez committed two or more acts of abuse over thir ty days apart. We overrule this issue.
II. Witness Testimony Lopez-Martinez next complains the tria l court erred by allowing the State to elicit testimony from G.Z. through the use of leading questions. The State maintains the questions were not improper, similar evidence came in through Molina, and Lopez-Martinez did not preserve error on his second set of challenged testimony.–8– The Rules of Evidence generally proh ibit leading questions on direct examination except where such questions ma y be necessary to de velop the witness’s testimony. T EX

. R. E VID . 611(c). Leading questions are questions that suggest the desired answer, instruct the witness how to answer, or put words into the witness’s mouth to be echoed back to the prosecutor. Wheeler v. State , 433 S.W.3d 650, 655 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d); Newsome v. State , 829 S.W.2d 260, 269 (Tex. App.—Dallas 1992, no pet.). The mere fact a question may be answered with a “yes” or “no” does not cause it to be a leading question. Newsome , 829 S.W.2d at 269; Rodriguez v. State , No. 05-18-01448-CR, 2020 WL 881008, at *4 (Tex. App.—Dallas Feb. 24, 2020, no pet.) (mem. op., not designated for publication). It is only when the question suggests which answer is desired that it becomes a leading question. Newsome , 829 S.W.2d at 269. However, with a child witness, a trial court is give n some leeway, and the rule against leading questions is somewhat relaxed. Keller v. State , 604 S.W.3d 214, 225 (Tex. App.—Dallas 2020, pet ref’d). We review a trial court’s decision to allow a prosecutor to lead a State’s witness for an abuse of discretion. Hernandez v. State , 643 S.W.2d 397, 400 (Tex. Crim. App. 1982); Rodriguez , 2020 WL 881008, at *5. Abuse of discretion cannot usually be shown unless a defendant can demonstrate he was unduly prejudiced by virtue of such question. Wyatt v. State , 23 S.W.3d 18, 28 (Tex. Crim. App. 2000). Lopez-Martinez challenges the following extended exchange:–9– State: Okay. Tell me about a nother time that you remember, and—sorry, let me as k you this: Was there ever a time that it happened where [Lopez-Martinez] touched you with something other than his fingers? Defense: Your Honor, I’m going to object to that leading question as well. It’s been asked and answered, no, and I don’t know, and now it’s leading. State: It was not asked and answered. Court: Overruled. State: All right. [G.Z.], did he ever touch you with something different other than his fingers?
G.Z. No. State: Did he ever use another part of his body to touch your body?
G.Z. No.

. . . . State: Okay. Was there ever a time that he used his tongue on your private part? Defense: Your Honor, objection as to absolutely leading. Court: Sustained. Defense: And ask that that be struck from the record. Court: The jury will disregard the last question. State: Was there ever a time that he used something other than his hands on your body? Defense: Your Honor, objection—–10– G.Z. Yes. Defense: ––as to leading, again. Court: Overruled. State: You said, “yes”?
G.Z. Yes. Lopez-Martinez argues the previous excha nge as a whole constitutes a leading question. We disagree and c onclude that, to the extent some of the questions posed by the State were leading, they were nece ssary to develop the testimony of a scared, child witness. See Keller , 604 S.W.3d at 225. It wa s apparent throughout the testimony of G.Z. that, although she was em otional at times during her testimony, 3
she was able to articulate what had occurre d in the three incidents she described and the State’s questions did not create her version of events. Lopez-Martinez also complains the Stat e continued to ask leading questions when trying to clarify a time frame: State: Okay. And so did all th ese times—or, sorry, did these times that he touched you, was that all in one month, or over several months? Defense: And, Your Honor, objection as to asked and answered. This question—this witness has already answered inside of a mont h, and then she mentioned seasons. State: She’s a child. We’re trying to clarify, Judge.

3 G.Z. agreed during her testimony that she was ha ving a “hard time answering” and required the State to give her tissues at one point, indicating she became emotional.–11– Court: Well, since she has—si nce those responses seem to be in conflict, I’ll allow the question so we can get some clarification. State: Okay. So when he would touch you with his fingers, was that all in one month, or was it during seve ral different months. G.Z. Several months. State: Several months? G.Z. Yeah. State: Okay. And how do you re member that? How—you said that you were mostly eight; is that right?
G.Z. Yes. State: Did it also happen when you were nine?
G.Z. Yes. Lopez-Martinez did not object to those additional clarifying questions asked by the State and, therefore, failed to pr eserve error concerning that exchange. T EX

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. P. 33.1. Regardless, although the Stat e asked questions that could be considered leading or bordering on leading, they were asked to help streamline the examination of a child witness testifying about traumatic events that had occurred years prior. See Keller v. State , 604 S.W.3d at 225; Padilla v. State , 278 S.W.3d 98, 106 (Tex. App.—Texarkana 2009, pet ref’d) (no abuse of discretion to allow State to ask young victim of sexual abuse leading questions where she had to be reminded more than once to speak louder, appear ed reluctant to testify, had trouble–12– remembering events that occu rred over a year before tria l, and was emotional). We conclude the trial court pr operly permitted the questions Lopez-Martinez complains of on appeal because they helped cl arify G.Z.’s previous responses. Moreover, even if the trial court shou ld have sustained objections to the State’s questions, Lopez-Martinez is not entitled to reversal because similar testimony was admitted through Molina. His testimony concerning his interview with G.Z. included the same details provided by G.Z. at trial. Ther efore, the evidence was before the jury before G.Z. testified and Lopez- Martinez cannot establish he was unduly prejudiced. Under these circumstances, we cannot say the trial court abused its discretion or acted outside a zone of reasonable di sagreement in allowing somewhat leading questions during the examination of G.Z. See Keller , 604 S.W.3d at 225. We overrule this issue.
III. Modification of the judgment In his first issue, Lopez-Martinez conte nds that the judgment in this case is incorrect where it contained the followi ng finding under the “special findings” section: APPEAL WAIVED. NO PERMI SSION TO APPEAL GRANTED. The State agrees with Lop ez-Martinez that the j udgment is incorrect. When the trial court pronounced Lopez-Ma rtinez’s sentence, it stated: “I also need to advise you that you have the right to appeal the decision of the jury—the verdict of the jury, and if you cannot afford an attorney, an attorney will be appointed–13– for you.” The trial court’s certif ication of defendant’s right to appeal states “I certify that this criminal case is not a plea-bargain case, and th e defendant has the right of appeal.” We have the power to modify a judgment to speak the truth when we have the necessary information to do so. T EX

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. P. 43.2(b); Bigley v. State , 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State , 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d) (en banc). When there is a conflict between the oral pronouncement of a sentence and the wr itten judgment, the oral pronouncement controls. Shuler v. State , 650 S.W.3d 683, 686 (Tex. A pp.—Dallas 2022, no pet.) (citing Taylor v. State , 131 S.W.3d 497, 500 (Tex. Crim. App. 2004)). When the oral pronouncement and the written judgment conf lict, the remedy is to reform the judgment. See Thompson v. State , 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). Under this record, we conc lude the trial court did not find Lopez-Martinez had waived his right to appeal. We sustain this issue and modify the judgment to remove “Appeal Waived. No Permission to Appeal Granted” from the special findings section of the judgment.
CONCLUSION Under this record, we conclude the evidence was sufficient to support a finding that Lopez-Martinez co mmitted two or more acts of abuse during a period of more than thirty days as required by th e statute, and the trial court did not abuse its discretion when allowing leading ques tions. Accordingly, we sustain Lopez-–14– Martinez’s first issue, overrule his second and third issues, and affirm the judgment as modified.

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MARCELINO LOPEZ-MARTINEZ, Appellant

No. 05-21-00319-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 199th Judicial District Court, Collin County, Texas Trial Court Cause No. 199-83185- 2020.Opinion delivered by Justice PartidaKipness. Justices Pedersen, III and Nowell participating. Based on the Court’s opinion of this da te, the judgment of the trial court is MODIFIED as follows: “Appeal Waived. No Permission to Appeal Granted” is removed from the special findings section of the trial court’s judgment.
As REFORMED , the judgment is AFFIRMED

. Judgment entered this 4th day of November, 2022.