### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00456-CR

Juan Mora, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT

NO. 9024098, HONORABLE FRED A. MOORE, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

A jury found appellant guil ty of indecency with a child by contact and aggravated

sexual assault of a child. S ee Tex. Pen. Code Ann. § 21.11 (West 2003) , § 22.021 (West Supp.

2004). For these offenses, the jury assessed prison terms of ten and twelve years, respectively. In

two points of error, appellant contends that these convictions violate the constitutional guarantee

against double jeopardy and that hi s statement to the police should not have been admitted in

evidence. We will overrule these contentions and affirm.

In December 2000, appellant was living in an apartment near Rutland Drive in Austin

with Adriana G. and her three children. Adriana testified that appellant began living with her in

1998, left for a time, then returned in 1999. After his return, she, appellant, and the children lived

in an apartment on Reagan Hill. While in that apartment, her daughters S.C. and F.C. slept in bunk2

beds in the living room. They had moved to the Rutland Drive apartment only a few weeks before

the incident that gave rise to this prosecution. In the new apartment, the two girls slept on a mat in

the living room.

Adriana went to work on the morning of December 16, 2000, leaving appellant and

the children alone in the apartment. When she returned that afternoon, appellant was gone and nineyear-old S.C. was visibly upset. S.C.’s five-year-old sister, F.C., told Adriana that appellant had put

S.C. in the bed, taken off her clothes, and kissed her on the mouth. S.C. confirmed that this was true,

adding that appellant had “touched her parts”and that her “front part hurt.” The next morning, S.C.

told Adriana that one week earlier, while Adriana was away from the apartment, appellant had “hurt

her from the back.” Adriana reported what her daughters told her to the police.

S.C. testified that on the day her m other called the police, appellant picked her up

from the mat where she was sleeping and carried her into the bedroom. He put her on the bed and

removed her clothes. Then, he put “the part that boys pee with” in her “cola” or “bum,” a reference

to her anus. S.C. was certain that appellant put his “thing” inside her “cola.” She said it hurt. When

appellant stopped, S.C. noticed that the bed was wet. S.C. testified that appellant had done the same

thing to her about twenty times. She said that this conduct began while they were living in the

apartment where she slept in a bunk bed.

Dr. Beth Nauert, a pediatrician, examined S.C. on De cember 20, 2000. Nauert

testified that S.C. told her that ap pellant had touched her vaginal and rectal areas with his fingers

about twenty times. Nauert said that S.C. “seemed very clear about the touching. She demonstrated

with her hands touching, put her hands in between her legs and also on her bottom.” Nauert added,1 The court also authorized a conviction for indecency by contact as a lesser included offense of

the aggravated sexual assault alleged in count one. Because the jury convicted appellant of the

greater offense, this portion of the court’s charge did not come into play.

3 “I was not clear after talking with her about whether or not there had been any contact or penetration

by the penis. I was confused by her answers.”

Double Jeopardy

The indictment in this cause contained three counts. Count one alleged aggravated

sexual assault in four paragraph s, count two alleged indecency with a child by contact in three

paragraphs, and count three alleged indecency with a child by exposure in one paragraph. All of

these offenses and acts were alleged to have been committed against S.C. on or about December 16,

2000. Only three of the paragraphs were submitted to the jury. The court authorized appellant’s

conviction for aggravated sexual assault if the jury found that he either penetrated S.C.’s anus with

his penis or caused S.C.’s anus to contact his penis (count one, paragraphs one and two). The court

authorized appellant’s conviction for indecency with a child by contact if the jury found that he

touched S.C.’s anu s (count two, paragraph two). 1 The jury returned guilty verdicts as to both

offenses.

Appellant argues that the only touching of S.C.’s anus shown to have occurred on

December 16, 2000, was the touching incident to the penetration or contact of S.C.’s anus by

appellant’s penis. He therefore contends that his convictions for both aggravated sexual assault and

indecency by contact violate the multiple punishments prong of the Double Jeopardy Clause. See4

U.S. Const. amends. V, IV; Ochoa v. State

, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998); Patterson

v. State

, 96 S.W.3d 427, 432 (Tex. App.—Austin 2002, pet. granted). Because he did not raise the

double jeopardy issue at trial, the violation must be clearly apparent on the face of the record. D uvall

v. State

, 59 S.W.3d 773, 776-77 (Tex. App.—Austin 2001, pet. ref’d) (applying Gonzalez v. State

,

8 S.W.3d 640, 643 (Tex. Crim. App. 2000)).

It is true that S.C. testified to a single act of anal penetration on the night of December

16, 2000. If the only act of sexual contact shown by the evidence was the contact incident to this

penetration, we would agree with appellant’s double jeopardy claim. But there is other evidence of

sexual contact independent of the act of penetration on December 16: (1) Adriana testified that S.C.

told her that appellant “hurt her from behind” one week before the December 16 incident; (2) S.C.

testified that appell ant had put his “thing” in her “cola” twenty times, beginning when they were

living in the Reagan Hill apartment; and (3) Dr. Nauert testified that S.C. told her that appellant

touched S.C.’s “rectal area” with his fingers twenty times.

Appellant argues that we must limit our consideration of the evidence to the night of

December 16 because, in her jury argument, the prosecutor asked the jury to “concentrate” on the

events on December 16. But the court’s charge, consistent with the indictment, required a finding

that the offenses were committed “on or about” December 16, and instructed the jury that it could

base its verdict on conduct committed at any time prior to the return of the indictment and within the

period of limitations. S ee Sledge v. State

, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997). Consistent

with the charge and the evidence, the jury could find that appellant was guilty of sepa rate acts of

penetration and sexual contact. Because it is not clearly apparent from the record that appellant’s5

conv ictions for aggravated sexual assault and indecency with a child by contact are based on the

same conduct, his double jeopardy claim fails. Point of error one is overruled.

Statement to Police

On December 18, 2 000, appellant was questioned by Austin Police Officers Todd

Gage, who investigated this case, and Scott Ogle, who is f luent in Spanish. The interview was

videotaped. Both the tape and a certified transcription and translation were introduced in evidence.

During the interview, appellant admitted placing S.C. in bed with him on December 16, having an

erection, and touching S.C.’s leg with his penis. He denied ever penetrating S.C.

Appellant contends the videotaped statement should not have been admitted in

evidence because he was not shown to have knowingly and voluntarily waived his rights. Among

the prerequisites for the admission of a videotaped oral custodial statement is that the suspect be

advised of his rights prior to the statement and during the recording. Tex. Code Crim. Proc. Ann.

art. 38.22, § 3(a)(2) (West Supp. 2004). The certified translation of appellant’s videotaped interview

reflects that, before any statement was made, appellant was advised of his rights by Officer Ogle:

I’m going to read your rights. You have the right to keep your silence and say

absolutely nothing. Any statement you make can be us . . . can be used against you

in the cause that is charged. Any statement that you make could be used as evidence

against you in court. You have the right to have an attorney present so that he may

advise you before they ask you questions and during the time that questions are being

asked of you. If you cannot hire an attorney you have the right to have an attorney

appointed for him to advise you before they ask you questions. You have the right

to finish this interview at any time you wish. Did you understand your rights? I need

you to sign here

. . . that

. . . I read you your rights. It says that I have received my

rights that are write . . . wrote on the other side, of this card, I understand them, I

want to waive those rights voluntarily and make a statement. Your understand that?

I need you to sign here.6

Both Officer Ogle and Felipe Perez, the licenced court interpreter who prepared the transcription and

translation of the videotaped interview, testified that appellant nodded affirmatively when asked if

he understood his rights. Also in evidence is the card from which Ogle read appellant his rights. On

the front of this card, the rights enum erated in article 38.22, § 2(a) are printed in English and

Spanish. I

d

. art. 38.22, § 2(a). On the back of the card, also in English and Spanish, is the statement

“I have received and understand the warning on the other side of this card. I agree to waive these

Rights and to make a Statement.” Below this waiver are appellant’s signature, the date and time, and

Ogle’s signature as witness.

Contrary to appellant’s contention, the record clearly reflects that he knowingly and

voluntarily waived his rights, both orally and in writing, before making his statement to the police.

The record reflects full co mpliance with article 38.22, section 3(a)(2). Point of error two is

overruled.

The judgment of conviction is affirmed.

__________________________________________

Bob Pemberton, Justice

Before Justices Kidd, B. A. Smith and Pemberton

Affirmed

Filed: July 29, 2004

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