NO. 07-05-0240-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL B JULY 31, 2006

______________________________ IN THE MATTER OF M.M.L., A CHILD

_________________________________ FROM THE COUNTY COURT AT LAW #1 OF DENTON COUNTY; NO. JV-20 05-00211 ; HONORAB LE DARL ENE WHITTEN, JUD GE

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
OPINION Appellant

is a twelve-year-old male accused of engaging in delinquent conductby committing the offense of indecency with a child. The adjud ication trial wa s to a jury, who found the allegat i on to be true. After the disposition hearing, appell ant was placed on probation. Appellant has appealed, allegi ng e rror by e leven issues. We affirm the judgment of the tria l court. Factual Background
Hilda Sanchez, the mother of M.V., the complaining witness, employed appellant’s mother, Juana Me

jia, as a baby sitter. On July 22, 2004, Sanchez picked her daugh ter up2

at the Mejia apartment and found her daughter crying and Mejia no t in the apar tment. Sanchez was met at the door by appellant, whom she described as acting hurriedly. After leaving the apartment, Sanchez questio ned M.V. a bout why she was crying. M.V. told her that appel lant touched her in her private area with his p rivate area. As a result of M.V.’s outcry to Sanchez, Sanchez notified the poli ce in McK inney ab out appe llant’s actions. Byeleven issues, appellant appealshis conviction and sentence. By ten of these issues, appellant contends that the trial court committed reversible error by:
1. limiting appell ant ’s cross-examination of M.V. during the competency hearing; 2. finding M.V. competent to testify; 3. limiting appellant’s c ross-exa mination of M.V. during the trial before the jury; 4. admitting the testimony of the SANE nurse; 5. admitting the testimony of the “outcry “ witness; 6. denying the appellant’s motion for mistrial; 7. commenting on the evidence; 8. allowing evidence of an extraneous offense; 9. limiti ng the te stimony a t the moti on for new trial h earing; a nd, 10. denying the motion for new trial. Further, by his ninth issue, appellant contends that the evidence was factually and legall y insufficient to sustain the finding of true to the alleg ations in the State’s petition.3 Competency of M.V. Appellant’s first two c ontention s were briefed together and both concern the competency of M.V. to

testify and will, therefore, be addressed together. M.V. wasthreeyears old at th e time of t he incid ent and was four-years old at the time of trial. Appel lant contested M.V.’s compet e ncy as a witness and requ ested a h earing o n the matter. See T EX . R. E VID . 601(a)(2). The trial court held a hearing on the i ssue of competency out of the presence of the jury and ruled that she was competent to testify. We review that ruling under an abuse

of discre tion stan dard. Broussa r d v. State , 910 S.W.2d 952, 960 (Tex.Crim.App. 1995), In re A.W. , 147 S.W.3d 632, 635 (Tex.App.–San Antonio 2 004, no pet.) (app lying th e same sta ndard of review to juvenil e cases). At the hearing on the competency of M.V., the State conducted an examination of M.V. during w hich she

testifie d as to he r comp l ete name, age and that she was able to distinguish between the truth and a lie by identifying the color of a pen (blue) the attorney
was holding. When asked if she was told the pen was black would i t be the truth or a lie, she testi fied it would be a lie. M. V. further acknowl edged th at she un derstood that sh e would be required to tell the truth in court. Upon cross-examination by appellant, M.V. answered “yes” to a series of questions about havin g met appe llant’s attorney before, playing with puppies belonging to appell ant’s counsel and hunting for Easter eggswith the attorney. Each of these questions w e re designed to show that the witness would agree whenever

leading questions were asked. Based upon this exchange, appellant contends that M.V. was not competent to testif y. While appellant’s point is that M.V. did not know the difference between the truth and a li e, during appella nt’s own cross-examinatio n of M.V.,4

she was asked what the word “lie” means. M.V. answered, “That it’s not thetruth and it’s
a lie.” This statement demonstrates that M.V. knew the difference between the truth and
a lie. In determining whether the trial court abused its discretion, we are n ot to focus only on the questions asked during the hearing on competency but rather to review the ent ire record of her testi mony. Clark v. State , 558 S.W.2d 887, 890 (Tex.Crim.App. 1977). The record reveals that, during both the competency hearing and the trial on the merits, M.V.
was able to communica te the actions of appellant and the events surroundin g the incident in question. From this review, we conclude that M.V. had the ability to intelligently observe the events, the capacity to recollect and narrate them, and, from the competency hearing, the mo ral respon sibilit y to tell the truth

. Upton v. State , 894 S.W.2d 426, 429 (Tex.App.–Amarillo 1995, writ ref’d). Accordingly, we find no abu se of dis cretion in the ruling that M.V. was competent to testify. Appellant

also c o ntends that the court impermissibly limited his right to crossexamine M.V. during the competency hearing. Specifically, appellant contends that the following colloquy demonstrates an attempt by the court to limit cross-examination. After asking a series of leading questions designed to show that M.V. would say “yes” whenever asked a leading question, the following exchange occurred:
The Cour

t: I’m not going to

allow you to do any more of that. Trial Counsel: I have no other way, Judge, to sh ow that she’ll say stories. The Court: You have–you’ve made your poi nt. You said you wanted to call yourself. Go ahead.5

Atth at time, a ppellant’s counsel took the witness stand and testified that M.V.’s crossexamination testimony was untruthful. Appellant compla ins that the court impermissibly limited his cross-examination of M.V., yet the exchange clearly demonstrates that the court wasaware of the potential for false testim ony from the witness but, based upon all of the factors, found the w itness competent

. It appears that the trial court felt that the potential that M.V. would testify falsely
was an issue of the weight to be afford ed the testimony at trial rather than evidence of M.V.’s incompetence as a witness. We do not find the court abused its discretion in ruling M.V. competent or in limiting appellant’s cross-examinatio n at the competency hearing. Broussard , 910 S.W.2d at960 ; In re A.W. , 147 S.W.3d at 635. Appellant’s first two issues are overruled. Cross-examination of M.V. during the trial Appellant

n e xt contends that the court impermissibly limited his right to crossexamine M.V. in front of the jury and cites the court to certain portions of there porter’s record. Those portions of the reporter’s record ci ted by appellant occurred during a continuation of

the competency hearing out of the presence of the jury. At the conclusion of that hearing and after again ruling that the wi tness was competent to testify, appellant’s counsel said there were more questions that she wished to askthe witness . The cou rt inquired as to what the questions were and, after receiving counsel’s response , made the following statement, “Not all of that material has to be presented at this hearing as long as she has sufficient intellect to relate– I’m denying any additional ques t ions. It may be a1 Further r eferences

to Texa s Rules of Appell ate Proce dure will beby refere nce to Rule ___ __. 6 problem at trial when we get into that. She is qua lified and she is available.” (emphasis added). M.V. was then excused from the witness stand and other matters were taken u p. During the State’s case-in-chief, M.V. testifie d about t he events leading to the trial of appella nt. At theconclus ion of th e State’s direct e xaminati on, appella nt asked 15 questions on cr oss-examination. After re-direct examination by the State, appellant passe d the witness. At no time during M.V.’s testimony before the jury did appellant ask any of the leading questions referred to during the competency examination. At no time during M.V.’s trial testimony did appellant ask the court to reconsider any previous ruling, object to any previous ruling, or even me ntion an y previou s ruling . I t is from this record that appellant urges tha t the cour

t limited his righ t of cross -examina tion.
To preserveerror fo r review, a litigant must object and state the grounds for the ruling sought f

rom th e court with sufficient specificity to make the court aware of the complain t, unless the specific grounds are apparent from the context of the objection. T EX . R. A PP . P. 33.1(a )(1)(A). 1 Preservation of error is a systemic requirement that a first-level appella te court sho uld revi ew on its own moti on. See Jones v. State , 942 S.W. 2d 1, 2 n .1 (Tex.Cri m.App. 19 97); Hughes v. State , 878 S.W.2d 142, 151 (Tex.Crim.App. 1992) (op.
on reh’g). Appellant

seems to argue that the record demonstrates that the grounds for his objection were app arent from t he conte xt of the hearing on competency. However, the record reveals that the ruling of the court was to the issue of limitation ofappellant’s crossexamination of M.V. during the competency hearing, and that the issue of anylimitation of7

cross-examination during the trial before the jury would have to be handled at that time. Atno time during the cross-examination of M.V. in front of the jury did appellant attempt to askany of the questions of which he now complains, request the court to rule upon his right to ask tho s e questions, or in any manner put the trial court on notice that he felt that his rightto cross- examineM.V was l imited. Accordingly, we f ind that anylimitation of appellant’s cross-examination of M.V. before the jury w as not pre served. See Rule 33.1(a)(1)(A). Appellant’s issue is overruled.

Testimony pursuant to Texas Rule of Evidenc e 803(4) Appellant

next co ntends th at the tri al court erred in allowing Lucrecia Delawater, the sexual assault nurse examiner, to testify as to statements made by M. V. during the examination. The record reveals that Delawater was employed by the Denton Regional Medical Center, had been a registered nurse si nc e May 1994, and had been certified as
a sexual assault nurse examiner fo r “ several y ears ” at the time of trial. During direct examination , Del awater te stified t hat a “SA NE” exa m consisted of a d etailed history, a head-to-toe assessment, a detailed anogenital exam, and the collection of forens ic evidence. The trial court allowed Delawater to testify about statements M.V. made during the exam, over appellant’s hearsay objection. Appe llant po sits that, inasmuch as the testimony was offered pursuant to the hearsay exception contai ned in Texas Rule of Evidence 803(4), statements made for purposes of medical diagnosis and treatment, and because the witness had acknowledged that she was not qualified to make a diagno sis, there fore, the evid ence con stituted inadmiss ible hea rsay. S EE T EX . R. E VID . 803( 4)

. Delawater’s admission that she was not qualified to make a diagnosis of M.V. was in direct2 § 301.002, in part, states, “The term [Professional nursing ] does no t includ e acts

of medica l diagno sis or pre scriptio n of thera peutic o r correcti ve measur es.”
3 Originally passed as Acts of 1999, 76 th Leg., R.S., ch. 388, 1999 Tex. Gen. Laws 1669, eff. Sept. 1, 1999. 8 response to a question by appellant asto whether she was qualified to make a diagnosis under the provisions o f the Texas Occupation Code, section 301.002. 2 T EX . O CC
. C ODE A NN . § 301.0 02 (Verno n 2004). 3
A trial court’s decision to admit or excludeevidence is reviewed under an abuse of discretion standard

. See Weatherre d v. State , 15 S.W.3d 54 0, 542 (T ex.Crim. App. 200 0); Green v. State , 934 S.W.2d 92, 101- 02 (Tex. Crim.App . 1996); Montgomer y v. State , 810 S. W.2d 372, 390 (Tex.Crim.App. 1990) (op. on reh’g). A reviewing court should not
reverse a trial judge’s decision wh ose ruling was within the zone of reasona ble disagree ment. Green , 934 S.W.2d at 102. Appellant

cites this court to Texas Occupation Code, section 301.002, without any reference to cases supporting his position that the provision wou ld limit the qualification of
a nurse to testify

about sta tements ma de durin g an exa mination of a sex ual assa ult victi m. Since the effective date of the Texas Occupation Cod e provision cited by appellant, we hav e found no cases indicating that a nurse may n ot meet the exception of Rule 803 (4)

. See Bautistav. State , 189 S.W.3d 365, 368-69 (Tex.App.–Fort Worth 2006, no pe t. h.) (registered nurse permitted to testify about sta tements ma de by vic tim durin g exam); Wilder
v. State , 111 S.W.3d 249, 255 (Tex.App.–Texarkana 2003, pe t. ref’d) ( nurse per mitted to testify about sta tements ma de by vic tim durin g exam); Edwards v. State , 107 S.W.3d 107,9

116-17 (Tex.App.–Texarkana 2003, pet . ref’ d) (sexual assault nurse examiner permitted to testify aboutstatement s made by

victim d uring exam); Beheler v. State , 3 S.W.3d 182, 188-89 (Tex.Ap p.–Fort Wo rth 1999, pet. ref’d.) (sexual assault nurse examiner permitted to testify about sta te ments made by victim during exam). Additionally, D elawater is a health care provide r, as defi ned by bo th the previous medical malpractice statute and the current medical malpract ice statu te. S EE T EX . R EV . C IV . S TAT . A NN . art. 4590i, § 1 .03 ( Vernon Supp. 20 02) ; T EX . C IV . P RAC
. & R EM . C ODE A NN . § 74.001(a)(12)(A) (Vernon 2003). The history of the medical treatment exception to the hearsay rule, as reflected in the reported cases, a nd the co nsistent inclusi on of nur ses with in the de finition of “heal th care provider,” as promulgated by the legislature, leads us to the conclusion that the trial court did not abuse its discretion in allo wing t h e testimony of Delawater. Therefore, appella nt’s issu e is over ruled. Outcry statement
Ne xt, appellant makes several complaints about the testimony of Hilda S anchez , M.V.’s mother, regarding an outcry statem ent made b y M.V. The trial court conducted a hearing on the admissibility of the evidence outside the presence of

the jury. Prior to the hearing, the Stateproduced a summary of the ou tcry

statement. The trial court overruled appella nt’s obje ction an d admitte d the out cry testim ony.
As a review ing cour

t, we review the admission of evidence under an abuse of discreti on standa rd. See Weatherred , 15 S.W.3d at 542 ; Green , 934 S.W.2d at 101-02;4 Further reference to sections of the Texas Family Code will be by reference to “§

__.”
5 The requirements for admissibility of outcry statement pursuant to Texas Code of Criminal Procedure, article 38.072, are identical to those contained within § 54.031. 10 Montgomer

y , 810 S.W.2 d at 390. We will not reverse a trial judge’s decision whose rulin g was with in the zo ne of rea sonabledisagre ement. Green , 934 S.W.2d at 102.
F i rst, appellant contends that the State failed to meet the requ irements of section 54.031 of the Texas Fam ily Code

. See T EX . F AM . C ODE A NN . § 54.031 (Vernon 2002). 4 Appellant

cl aims the s ummary provided to him was different than the testimony offered. The FamilyCode requires that, 14 days before the date the hearing begins, the proponent of the outcry statement provide the other party with awritten s ummary of t he stateme nt. § 54.031(c )(1)(C). T he statute is silent as to how

detailed the summary must be and how it is tobe compa red to the testimony offered at trial. However, the courts have long he ld that the purpose of the summary requirement is simply to prevent the defenda nt from being surprised by the i ntroducti on of theoutcry statement

. Gay v. Sta te , 981 S.W.2d 864, 866 (Tex.App.–Houston [1 st Dist] 1988, pet. ref’d) (applying the summary requirement found in Texas Code of Criminal Procedu re, articl e 38.072 ). 5 However, the summary must be more than a general allusion to sexual abuse. Davidso n v. State , 80 S.W.3d 132, 136 (Tex.App.–Texarkana 2002, pe t. ref’d). It must give the defendant notice of the content and scope of the outcry statement and is sufficient if it reasonably informsthe appellant of the essentia l facts re lated to the outcry statement

. Id

.6 “Colita ” is a ter m M.V. use d to desc ribe gen italia. 11 Comparison of the summary of the outcry statement with the testimony of Hilda reveals a difference. The summary i ndicates that M.V. alleged that appellant “put his ‘colita’ inside her ‘colita.’” 6 During her trial testimony, Hilda did not testify that M. V. told her that appellant penetrated M.V.’s sexual organ with his. In all other particulars, the summary

of the ou tcry state me nt matches Hilda’ s testimon y. Most co mplaintsabout a variance between the summa ry of the o utcry stateme nt and th e testimony address situations where the testimony exceeds the scope of the outcry statement. See generally Gay , 981 S.W.2d at 866 (summary indicating only “kissing and touching” were insufficient to overcome hearsay objection when t estimony of outcry statement alleged additiona l forms of sexually abusive behavior). In thepresent case, the summary alleges a broader scope than the testimony. As a result, we cannot say that the trial court abused its discretion by admitting the outcr

y statem ent based upon the variance between the summary and the testimony. Appellant received ample notice and was not surpri sed by th e testimo ny. Davidson , 80 S.W.3d at 136. Appellant

next complains that M.V. was n ot available and, therefore, the requi rem ents of the statute were not met. § 54.031(c)(3). Appellant’s argument is premised on his p rior comp laints that M.V. was not competent to testify and that appellant was denied the rightto fully cross-examine her. These complaints have been previously discussed and overruled and, therefore, we find no merit in appellant’s contention that M.V.
was unav ailable

.12

Finally, appellant argues that Hil da was n ot the fir st person to whom M.V. made the outcry statement . The record does reflect testimony that M.V. made an outcry statement to her father before speaking with Hilda. In r esponse to appellant’s question, “Was your dad the first

person th at you tol d about t his,” M.V. responde d “Y e s.” However, the evidence presented at the he aring to determine the admissibility of the outcry statement established the fact that M.V. made the outcry statement to Hilda immediately upon being picked up at ap pellant’ s home. There is no testimony remotely indicating that M.V. even
sawher father until later the same day. Based upon this testimony, we cannot say the trial court abused i ts discretion in allowing the testimony regardin g the out cry statem ent befor e the jury. Weatherred , 15 S.W.3d at542. Appellant’s issue regarding the o utcry statement is overru led.
Motion for mistrial Appellant

contends that the court erred in denying a motion for mistrial urged during the cross-examinatio n of Hil da. The granting or denying of a mistrial is within the discretion of the court

. See Wood v. S tate , 18 S .W.3d 642 , 648 (Te x.Crim.A pp. 2000 ). A court abuses its discretion when its action or decision is not within the zon e of re asonable disagree ment. Montgomer y , 810 S.W.2d at 39 1. Mistrial is a device used to ha lt trial proceedings when error is so prejudicial that expenditure of further time and expense woul d be wasteful and futi le. See Wood , 18 S.W.3d at 648. A court may properly e xercis e its discretion to declare a mistrial if an impartial ve rdict ca nnot be reached, or if a verdict of conviction could be r eached but would have to be reversed on appea l due to an obvious13

procedural error. Id . The determin ati on of whether a given error necessitates a mistrial must be ma de by examining the parti cular fac ts of the case. Id

. During the c ross-examination of Hilda, appellant asked if Hilda had discussed the
case with anyone at he r job. The State ob

jected an d requested th e opport unity to approach the bench. Before the State was ableto approach the bench, appellant stated that if the State had an objection to make it. The State then stated, “I say at this point the Respondent’s attorney is trying to conduct an investigation that should h ave been done pretrial. ” Appell ant objec ted to thestatement

and requ ested thecourt o rder the jury to disregard. The court sustained the objection and i nstructed the jury to disregard the statement. Citing this court to McMurrough , appell ant clai ms that this statement inflamed the minds of

the jury to his de trime nt necess itating amistrial

. McMurrough v. State , 995 S.W.2d 944, 947(Tex.Ap p.– Fort Worth 199 9, no pet .) McMurrough involve d comments made by the prosecutor during closing argument that were outside the record. As the appella te court pointed out, th e comments of the prosecutor suggested that appellant’s counsel had manufactured a defense and, as such, are among the most egregious types of error. Id . However, the statement before us does not rise to that level. At most, the State made a speaking objection that went to the tenor of the cross-examination of Hilda. This court does not approve of the comments, but we cannot say that the harm was such that the subs equent i nstructio n to disr egard was

not suffi cient. Ovalle v . State , 13 S.W.3d 774, 783-84 ( Tex.Cri m.App. 2 0 00). When matters are injected into the trial that have no perceived relevance and are potentially prejudicial to the app el lant, app ellate courts presum e that an instru ction to disregar d the evi dence wi ll be ob eyed by t he jury. See14

Gardner v. State , 730 S.W.2d 675, 696 (Tex.Crim.App. 1987). The exception to the above statement is in those situations where it appears that the matter injec ted is clearly calculated to inflame the minds of the jury and is of such acharacter as to su ggest the impossib ility

of withdrawing the impression produced on their min ds. Id . After a review of the totality

of the situation, we cannot say that the court abused its discretion in overruling appellant’s motion for mistrial, therefore, appellant’s issue is overruled. Comment on the weight of the evidence Appellant

next co ntends th at the cou rt ma de comment s, during the course of the trial, that were impermissible comments on the we ight of the evidence. Appellant cites three separate comments of the court and posits that the cumula ti ve effect of these commentsis to deny appellant a fai r trial. The first comment involved the crossexamination of Hilda, inquirin g into when sh e first took M.V. to see a doctor or nurse. When Hilda testified that she did not remember the date, appe llantattempted to refresh her memory with some “papers” from the exam. However, the State offered to stipulate to the date, “ if that w ill move things along.” To which the court stated, “Thank you, it will.” The second commentoccurred during the court’s instructions to the jury as they were dismissed for the day. After an unrelated objection by the State and a reply by appellant’s attorney, the trial court stated, “I’ve got another problem too, and I’ve got a court reporter who needs to leave at 5:15. I hate to break a witness’ testimony, I really do, butit does not look like this is goin g to conc lude any time real , real fas t, and I a m g oing to r e cess until tomorrow morning at 8:30." Finally, appellant contends that the co urt’s comment that counsel was to use a reasonable amount of time in closing argument was a comment on the weight of7 For purposes of this opinion, we do not nee d to discuss the precedential value of the plurality opinion in Blue

. 15 the evidence. The record reveals that this third co mment cameafter the State requested
a reasonab le limit

on appe llant’s closing argument toward th e end of th e argumen t a nd after app ellant h ad argue d the same issues r epeatedl y.
The first comment complained of had nothing to dowith the evidence or its weight. The trial court simply agreed that a stipulation as to thedate of t he initi al exam, which was the same date ap pe llant was seeking to elicit from the witness, wou ld move the matter along. The second comment complained of was not i n any way directed to anything other than explaining to the jury and the parties w hy the witness’s testimony would be broken up by an evening recess. Finally, the third comment appe ars to have been the court’s ruling
on an objection by the State that appella nt’s argu ment was repetitiv e. All of these alleged commentshave one thing in common , they app ear to bean effort by the tri al court to maintain control of the litigation and to ex pedit e the trial of the case. We show great deference to the tri al court in thesematters. Jasper v. State , 61 S.W.3d 413, 421 (Tex.Cri m.App. 20 01). Additionally, as admit

ted by ap pellant, there wa s no obje ction toany of the alleged commentsat the ti me they w ere made. We , therefor e, will review them from the perspective of funda mental er ro r. Blue v. S tate , 41 S.W.3d 129, 131 (Tex.Crim.App. 2000). 7 When thecomments are thus r eviewed , it is apparent that the court’s alle gedly improper comments do not rise to the level of the comments made in Blue

. In Blue , the trial court stated to the jury panel that he would have preferred that the defendant pled gu ilt y16

rathe r tha n go to tr ial. Id . at 130. This comment struck directly at the presumption of innocence of the defendant. None of the co m ments app ellant n ow compl ains of, individually

or collectively, rise to the level of fundamental error. As such, timely objection was required to preserve error. Rule 33.1(a)(1)(A). Appellant’s i ssue is overruled.
Extraneous offense
A ppellantnext contends that the trial court erred in allow ing the a dmission o f evidence of

extraneous offenses before the jury. The record shows that the State filed a notice of intent to use evidence of other crim es and that the trial court held a hearing outside the prese nce of th e jury on t he issue before any such testimony was admitted. During this hearing , Hilda, M.V.’s mo ther, testified that M.V. had told her that appellant had touched her o n more than one occasion. The trial court ruled that the testimony could
come in with a limiti ng instru ction as to the purposes for which it could b e used. H owever, the record reflects that Hilda was never questioned about the statement from M.V. in front of the jury. Subsequently, witness Delawater testifie d that, du ring her examina tion of M. V., M.V. state d that ap pellant touched h er “like he did b efore.”
The admission of evidence is reviewed unde r an abuse of discretion standard. See Weatherred , 15 S.W.3d at 542; Green , 934 S.W.2d at 101-0 2; Montgomer y , 810 S.W.2d at 390. A reviewing court should not reverse atrial judge’s decisio n whose ruling was within t he zone of reasona ble disa greement. Green , 934 S.W.2d at 102.
Article 38.37 of

the Texas Code of Criminal Procedure sets the parameters for the admission of evidence of other wrongs, crimes or acts committed by a defendant against17

a child vict im. T EX . C OD E C RIM . P ROC
. A NN . art. 38.3 7 (Vernon Supp. 20 05). The Texas FamilyCode specifically allows the use of evidence in accordance with Chapter 38 of the Texas Code of Criminal Procedu re in the adjud ication phase of a juvenil e case. §54.03(d)

. Pursuantto article 38.37, evidence that bears on relevant matters, including (1) the state of mind of the defendant and the child, and (2) the previous and subsequent relationship between the d efendant a nd the ch ild, is a dmissibl e. T EX . C ODE C RIM . P ROC
. A NN . art 38.37(2)( 1)-(2) (Ve rnon Sup p. 2005).
Atthe hearing, held outside of the jury’s presence, to determine the admissibility of this evidence, the State offered the evidence ashighly probative of both appellant’s intent to engage in the of

fense of i ndecency

and the state of mi nd of bot h appell ant and M .V. We note that the issue of appellant’s intent to commit the offense of indecency was hotly contested throughout the trial. Additionally, on appeal, this same issue isth e basis of appellant’s contenti on that th e eviden ce was fa ctually and lega lly insu fficient. Fi nally, appellant

offered testimony that M.V. had hurt herself when she tripped over a scooter a s a contradictory explanation for why M.V. was upset whe n her mother picked her up.
The evidence of appellant’s touching M.V. “like he did before” clearly goes to the intentof appellant and to the state of mind of both a ppellant and M.V. and is a dmissib le. Ernst v. S tate , 9 71 S.W.2d 698, 700 (Tex.Ap p.–Austi n 1998, n o pet.). U nder the facts before the trial court, we cannot say that the admission of this evidence was an abuse of discreti on. Weatherred , 15 S.W.3d at 542. Appellant’s issue is overruled.18 Factual and legal sufficiency Appellant

next urges that

the evidence was factually and legall y insufficient to prove the element that appellant intended to arouse and gratify his sexual desire. Factual and legal sufficiency challenges in a juvenile case are governed by the crimina l standard o f proof. § 54.03 (f); In re B .S.S. , No . 03-04-0 0215-CV, 2006 Te x. App. L EXIS 168 2, at *2 (Tex.Ap p.–Ausit n 2006, no pet. h.); In re D.J.H. , 186 S.W. 3d 163, 1 64 (Tex. App.–For t W orth 2006, pet. filed). When both legal and factual su fficiency are challenged by an appella nt, the court must conduct the legal s ufficien cy review first. Clewis v. State , 922 S.W.2d 126, 133(Tex.Cri m.App. 19 96). One cannot be convicte d of a cr ime unless it is shown, beyond a reasonable doubt, that he committed each element of the alleged offense. U.S. C ONST
. amend. XIV; T EX . C ODE C RIM . P ROC
. A NN . art. 38.0 3 (Vernon Supp. 20 04).
A legal sufficiency review consists of reviewing the evidence i n the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crimebeyond areasonab le doubt

. Jackson v. Virginia , 443 U.S. 307, 319 , 99 S.Ct. 2781, 61 L.Ed.2d 560 (197 9); Burden v . State , 55 S.W.3d 608, 612 (Tex.Crim.App. 2001). This standard is the sa me in bot h direct and circumstantial evidence
cases. Burden , 55 S.W.3d at 613. All the evidence p resen ted to the jury must be considered, whether properly or improperly admitted, to a ssess the factual findings from the jury’s perspect ive. See Miles v. State , 918 S.W.2d 511, 512 (Tex.Crim.App. 1996). As an appel late cou rt, we may not sit a s a thirte enth juror, but must uphold the jury’s verdict unless it is irr

ational or unsupp orted by m ore th an a “mere mod icum” of e vidence. See Moreno v. State , 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). We resolve inconsistencies19

in the evid ence in favor of th e verdict

. Curry v. State , 3 0 S.W.3d 394, 406 (Tex.Crim.App. 2000).
When an appellant challenges the factual sufficien cy of his conviction, the reviewing court must ultimately determine whether, considering all the evid ence in a neutral light, the jury was rationally justified in finding thedefenda nt guilty beyond areasonab le doubt

. See Zuniga v. State , 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). There are two ways in which the evidence may be insufficient. First, when conside red byitself, evidence supporting the verdictmay be t oo wea k to supp ort the fi nding of guilt be yond a re asonabl e doubt. Id

. Second, considering all of the evidence, both for and agai nst the v erdict, th e contrary evidence may be so strong that the beyond-a -reasonab le-doubt standard could not have been met. Id . at 484-85 . If we conclude that the evidence wasfactually sufficient to suppo rt the c onviction, we must address appellant’s main argument and explain why we are no t persuade d by it. Sims v. S tate , 99 S.W.3d 600, 603 (Tex.Crim.App. 2003)
When conducting a legal sufficiency review, we must review the total record, which
we have done throughout this opinion. Relying upon that review, we find that the State was required to prove the elements of indecency with a child: t hat is, (1 ) that app ellant, ( 2) with intentto gratify his sexual desire, (3) intentionally or knowingly engaged i n sexual contact with M.V. by touching the genitals of M.V., (4) a child young er than 17 and notthe spouse of appella nt. See T EX . P EN . C ODE A NN . § 21. 11 (Vernon 2005). The State must further prove that the touching was of the nature prohibited by the statute. The record affirmatively demonstrates proof of appella nt’s ide ntificati on, the a ge of M.V. , and that she was not the spouse of appellant. As to the touching, the record contain s testimony thatappe llant20

placed his hand on the genitals of M.V. and placed hisgenitals against M.V. The contested issue wa s that of a ppellan t’s inten t to grati fy his se xual de sire.
The intentto gratify t he sexu al desir e of appe llant may

be infer red by the

act itsel f, by appellant’s conduct or remar ks, or by the su rroundin g circums tances. See McKenzie
v. State , 617 S.W.2d 211, 216 (Tex.Crim.App. 1981), Couchman v. State , 3 S.W.3d 155, 163 (Tex.App.–Fort Worth 1999, pet. ref’d). It was appellant’s conduct i n t rying to hur ry Hilda and M.V. from the h ouse th at originall y aroused Hilda’s suspicion. M.V. testified clearl y as to what appellant had done to her. Final ly, Delawater’s testimony related that M.V. alleged that appellant touched her “like he had done before.” From a review of thi s record, itcannot be said that no rational jury could have foun d the elements of indecency with a child , includ ing the i ntent togratify sexual desires element, against appellan t beyond a reasonable doubt. Appellant’s legal su fficiency is overruled.
Our review of the record also convinces us that, when the evidence is reviewed in
a neutral light, the jury was rationally justified in findi ng app ellant g uilty beyond a reasonable doubt. Zuniga , 144 S.W.3d at 484. Appellant argues that his explanation that M. V. cried b ecause she fell over a scooter demonstrates the factual insufficiency of the evidence on the element of his intent. The testimony regarding whether M.V. fell over the scooter was contested. The State introduced the testimony of Delawater that

appellant had touched M.V. before to prove this element. It was for the jury to resolve the conflicts in this evi dence and to d etermine which te stimony was belie vable. See Johnson v. State , 23 S.W.3d 1,8 (Te x.Cr im.App. 2000). A reviewing court is able to d isagree with the factual determi nati on of a jury, but only in limited circumstances, and the court sho uld be21

appropriatelydeferential to the jury’s determination as to the we ight of evid ence and the credibil ity

of witne sses. Id . at 8-9. We cannot say, based upon a neutral review of thi s record, that the evidence is so weak that the jury was not rationally justified in finding the appellant

guilty b eyond a r

easonabl e doubt. Zuniga , 144 S.W.3d at 484. Neither can we say that, con sidering all of th e eviden ce, both f or and ag ainst t he ve rdict, thecontrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id . at 484-85. Therefore, appellant’s factual sufficiency issue i s overruled.
Amended motion for new trial Appellant

next compla i ns of the action of the court in limiting the testimony a t the motion for new trial hear ing t o the issues raised in the original motion for new trial. The issue of the alle ged limitation that the trial court placed on the evidence produce d at the motion for new trial is separate from the ruling on the motion and will be treated distinctly. The jury rendered a verdict of true against appellant on March 31, 2005. On April 27, 2005, appellant

filed a motion for new

trial. The hearing on the motion for new trial began on May 27, 2005. At the beginning of the hearing, appellant requested leave to file an amended motion for new trial. The amended motion for new trial sought to raise the issue of newly discovered evidence for the first time. The State objected and the court initially ruled that appellant

could file theamended motion fo r new tria l. When t he heari ng resume d at a later date, the State reurged its objectio n to the am ended mo tion for n ew trial . The cou rt reversed its original decision and denied a ppellant the right to amend the motion for new trial. After ruling that the amend ed motion was not timely filed, the court limited the22

testimony to evidence in support of the original motion for ne w trial. It is from this ruling that appellant complains. The right to move for a new trial in acriminal case is purely s tatutory. Drew v. S tate , 743 S.W.2d 20 7, 223 (T ex.Crim. App. 198 7). Currently, Texas Rule of Appel late Procedure 21 governs the new t rial prac ti ce in Texas. Rule 21. Rule 21.4(a) provides that a motion for new trial must be filed “not later than 30 days after, the date when the trial court imposes
or suspends sentence.” Rule 21.4(a). Rule 21.4(b) provides that an amended motion for
newtrial may be filed “within 30 days after the da te when the trial court imposes or suspends sentencein open court but before th e court ov errules a ny pre c eding motion for
newtrial. . . .” Rule 21.4 (b). The rules , when re ad togeth er, mean t hat any a mendments to the motion for new trial must be completed within the same 30-day time period. State v. Lewis , 151 S.W. 3d 213, 2 19 (Tex. App.–Tyl er 2004, pet. ref’d ).
The statutory provisions for filing motions for new trial and amended motions for new trial are mandatory and must be complied with in all resp ects. Id . at 218 (citing Drew , 743 S.W.2d at 223). The fact that the amended motion for new trial is based on newly discovered evidence has no impact u pon the a ppellate timetabl e. Licon v. State , 99 S.W.3d 918, 926 (Tex .App.–El Paso 20 03, no pe t.). Fail ure to ad here to the timetable in the rules leave s the court

without jurisdict ion. Id . Because an untimely filed amended m otion fo r newtrial le aves the court wit hout ju risdict ion, the evidence presented in support of the untimelyamended motion fo r new tria l may not be consi dered by the court. Id

. Appellant’s tenth iss ue is ove rruled.23 Denial of motion for new trial
The granting or denyi ng of a mo tion for n ew trial is withi n the dis cretion of the tr ia l court. See Ladd v. S tate , 3 S.W.3d 54 7, 567 (T ex.Crim. App. 199 9); State v. Gonzalez , 855 S.W.2d 692, 696 (Tex.Crim.App. 1993). I n review ing the t rial cou rt’s deci sion, ou r standard of re view is whether t he trial court abu sed its d iscretio n. Id .; Brown v. State , 960 S. W.2 d 772, 778 (Tex.Ap p.–Dal las 1997 , pet. ref’ d). A tria l court a buses its discreti on when its action or decision is not within the zoneof reason able dis agreemen t. See Montgomer y , 810 S.W.2d at 391. A trial ju dge's rul ing on amotion fo r new tr ial is p resume d to be co rrect. See Lee v. State , 167 Tex .Crim. 608 , 322 S.W. 2d 260, 2 62 (1958 ).
All of appellant’s issues in the original motion for new trial have bee n pre viously addressed and overruled, except for two. One of these addresses an issue arising during voir dire and the other alleges that a juror slept during the trial proceedings. As to the issues previouslyaddressed in this opinion, we cannot say that the trial court abused its discretion in denying appella nt a new tri al. Ladd , 3 S.W.3d at 567 . As to the other two issues, appellant

has not iden tified an y record e vidence to suppor t these al legation s. Neither has appellant

specifi cally ad dressed t he conten tions in his app ellate b rief. The se issue s are inade quatelybriefed and are, therefore , waived . Rule 3 8.1. See Hankinsv. Sta te , 13 2 S.W.3d 380, 385 (Tex.Crim.App. 2004). Accordingly, appellant’s fin al issue is overruled.
Conclusion Having overruled appellant’s issues, the judgment of the trial court is affirmed.24 Mackey K. Hancock Justice