# /3Z-/S

No. PD-Q138-CR 

# ORIGINAL

IN THE 

### COURT OF CRIMINAL APPEALS 

## OF TEXAS APR 17 2015 

## COURTOFCRIMINALAPPEALS

CESAR GOMEZ 

### Appellant/Petitioner,

VS.

THE STATE OF TEXAS 

### Appellee/Respondent. ^rk



### APPELLANT'S PETITION FOR DISCRETIONARY REVIEW 

## FILED IN 

## COURTOFCRIMINALAPPEALS In Appeal No. 12-13-00050-CR APR 17 2015 From the 

## Court Of Appeals Abel Acosta, Clerk for the Twelfth Judicial District 

### of Tyler, Texas

Pro se:Cesar Gomez 

### TDCJ-ID // 1839985 Eastham State Farm 

### 2665 Prison Road # 1 

### Lovelady, Texas 75851TABLE OF CONTENTS INDEX OF AUTHORITIES Ill STATEMENT REGARDNING ORAL ARGUMENT 1 STATEMENT OF THE CASE 1 STATEMENT REGARDING PROCEDURAL HISTORY 2 GROUND FOR REVIEW NUMBER ONE: blhether the Court of Appeals properly addressed issues one, two, three, four, that the trial court did not abuse its discretion in admitting two photographs during his trial on punishment in violation of Texas Rules of Evidence 401, 402, and 403. GROUND FOR REVIEW NUMBER TWO: Whether the Court of Appeals properly addressed issue five that Petitioner did not suffer egregious harm in failing to give instructions to contextualize the nonbinding date of the offense order to prevent reliance on conduct that occurred outside the chronological perimeter for continuous sexual abuse of a child?

GROUND FOR REVIEW NUMBER THREE: Whether the court of Appeals properly addressed issues six, seven, eight, nine, ten, and eleven, in the trial court committed various errors stemming from its attempt to amend the indictment?
6R0UND FOR REVIEW NUMBER FOUR: Whether the Court of Appeals properly addressed issue tuelve, in finding at the hearing on his motion to suppress that the interrogator complied uith the oral confession statute when he told the Appellant that his right to counsel did not become effective until after he was interviewed, was Constitutional under Fifth, Sixth, and Fourteenth Amendments? ARGUMENT NUMBER ONE 3-5 ARGUMENT NUMBER TWO 5-6 ARGUMENT NUMBER THREE 7-B ARGUMENT NUMBER FOUR 8-11 PRAYER FOR RELIEF 12 CERTIFICATE OF SERVICE 12 APPENDIX (OPINION OF THE TWELFTH COURT OF APPEALS) A

IITABLE OF CITED AUTHORITIES Almanza v. State, 6B6 S.W.2d 157 (Tex.Crim.App. 19B5) 5,6 Alvarado v. State, 912 S.W.2d 199 (Tex.Crim.App. 1995) 11 Arizona v. Mauro, 481 U.S. 520 (19B7) 10 Arizona v. Robertson, 4B6 U.S. 477 (1988) 9 De La Paz v. State, 279 S.W.3d 336 (Tex.Crim.App. 2009) 3 Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007) 5 Dinkins v. State, B94 S.W.2d 330 (Tex. Crim. App. 1995) 5 Edwards v. Arizona, 451 U.S. 477 (1981) 9 Oenninga v. State, 302 S.W.3d 344 (Tex.Crim.App. 2010) 6 Jordan v. State, 256 S.W.3d 286 (Tex. Crim. App. 200B) 4 Michigan v. Jackson, 475 U.S. 625 (1986) 11 Miranda v. Arizona, 3B4 U.S. 436 (1966) 9,10,11 Montgomery v. State, B10 S.W.2d 372 (Tex.Crim.App. 1990) 3 Stirone v. United States, 361 U.S. 212 (1960) 7,8 Soffar v. Dretke, 368 F.3d 441 (5th Cir. 2004) 11 Soffar v. Johnson, 237 F.3d 411 (5th Cir. 2000) 11 Taylor v. State, 332 S.W.3d 483 (Tex. Crim. App. 2011) 5 Upton v. State, 853 S.W.2d 557 (Tex. Crim. App. 1994) 10 United States v. Young, 730 F.2d 221 (5th Cir. 1984) 7 United States v. Arlen, 947 F.2d 139 (5th Cir. 1991) 7 Ward v. State, B29 S.W.2d 787 ( Tex. Crim. App. 1992) 7

III.PD-0138-CR NO.
IN THE COURT OF CRIMINAL APPEALS OF TEXAS CESAR GOMEZ Appellant/Petitloner, VS. THE STATE OF TEXAS Appellee/Respondent. APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

TO THE COURT OF CRIMINAL APPEALS OF TEXAS: Appellant/Petitioner ("Petitioner" hereinafter) respectfully submits this Petition for Discretionary Review, ("PDR" hereinafter) and moves that this Honorable Court grant review of this cause and offers the following in support thereof: STATEMENT REGARDING ORAL ARGUMENT The Petitioner request oral argument in this case because such argument may assist the Court in applying the facta to the issues raised. It is suggested that oral argument may help simplify and clarify the issues.
STATEMENT OF THE CASE Petitioner appealed 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. Petitioner raised fourteen issues on appeal in the Twelfth Court of Appeals, who affirmed the conviction. In condensed form, Petitioner raises twelve of the fourteen issues. Petitioner calls to question the reasoning of the Court of 

### Appeals, especially in reference to his assertion of his right of counsel, and non-suppression in trial court, of custodial 

### interrogation by Detectives. The Petitioner now submits this his PDR the Court of Appeals decision in all aspects. Page 1 of 12STATEMENT OF PROCEDURAL HISTORY In cause no. 241-0529-12 the Petitioner was charged initially with Aggravated Sexual Assault of a Child. On Feb. 1, 2013, a mere 3 days prior to trial, the trial court granted the
State's motion to amend the indictment and the trial court interlineated the indictment on Feb. 2, 2013. (CR 42, 46; CRS2; 10 RR 1, 11) Petitioner plead not guilty, but was convicted by a .jury on Feb. 6, 2013. The Petitioner was convicted on the Original Indictment as returned by the Grand Jury. (See, Original Judgement of Trial Court, CR 102-03, cf. 121-22, cf. CR 91) However, the Trial Court entered a nunc pro tunc order that effectively altered the judgement to Continuous Sexual Abuse of a Child Younger than Fourteen Years of Age. Id. On Jan. 21, 2015, the Tyler Court of Appeals affirmed the conviction. No motion for rehearing was filed. On Feb. 6, 2015, this Honorable Court granted the motion for extension to file PDR up to and including April 21, 2015. On April 15, 2015, this PDR was timely forwarded to the Court of Criminal Appeals, by placing the same in the Institutional Internal Mailing System, for filing pursuant to Rules 9.2(b), 6B.3, Tex. R. App. P. I. Whether the Court of Appeals properly addressed issues one, two, three, and four, that the trial court did not abuse its discretion in admitting two photographs during his trial on punishment in violation of Texas Rules of Evidence 401, 402, and 403? II. Whether the court of Appeals properly addressed issue five, that Petitioner did not suffer egregious harm in failing to give instructions to contextualize the nonbinding date of the offense order to prevent reliance on conduct that occurred outside the chronological perimeter for continuous sexual abuse of a child? Page 2 of 12/ III.

I Whether the Court of Appeals properly addressed issues six, seven, eight, nine, ten, and eleven, in the CMh trial court committed various errors stemming from its attempt to amend the indictment ? IV. Whether the Court of Appeals properly addressed issue twelve, 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 counsel did not become effective until after he was interviewed, was Constitutional under Fifth, Sixth, and Fourteenth Amendments? AR6UMENT NUMBER ONE In Grounds One through Four in the Court of Appeals, the Nexus and facts are essentially the same, and involve Exhibits 84 and 85 of the State on Punishment. The Court of Appeals has made

a decision in direct conflict with the precepts of this Honorable Court, the United States Supreme Court, and made a decision that

so far departs from the accepted and usual course of judicial procedure, as to call for an exercise of this Honorable Courts power of supervision. In State's Exhibit 84 and 85, the State sought to introduce photo images of the Petitioner's penis for no other reason than to inflame the minds of the jurors. There can be no reasonable 

### "zone of disagreement," in the instant case. Hontgomitiy v. State., B10 S.W.2d 372, 391 (Tex.Crim.App. 1990)(op. on reh'g) The Court of Appesis pointed to the State's theory that the Petitioner ia a "voyeur." (Slip Op. at 4) However, this is not a "theory of law 

### applicable to [the] ruling". See, Pe La Pat V. Statl, 279 S.W.3d 336, 344 (Tex.Crim.App. 2009) The Court of Appeals stated plainly, "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." (Slip Op. at 4) Page 3 of 12The Court of Appeals then disavows this viiw in favor of the State due to a security system installed in :he home. However, the Court of Appeals and the State allude that there were only two cameras in the home, which is untrue. Further, the Court of Appeals held, "that officers were unsuccessful in recovering past videos recorded by the surveillance system." (Slip Op. at 4) Instead the Court of Appeals uses supposition to support its view
of the evidence. Id. Quite plainly, there was no actual probative value to the evidence. The exhibit was nothing more than, legal photos of two consenting adults on the Petitioner's cell phone, and nothing to support the State's view, or the Court of Appeals opinion. Further, the State has violated Discovery under Tex. Code Crim. proc. art. 39.14, in that there are multiple burglary/theft reports on file with the police department that demonstrates the security system was installed for the purpose of security, not to "show that Appellant invested a substantial sum of money and time installing a video system to record himself abusing F.G." (Slip Op. 4) The Court of Appeals further admitted, the State's theory

was improper to demonstrate, "and that's what that little girl had to look at for six years." (Slip Op. at 3) Plainly the sole purpose of the photos, which were not illegal in any fashion, was to inflame the minds of the jurors. The State had plenty of evidence sufficient to demonstrate that Petitioner had a penis. There should have been no harm analysis, 88 it would have been, and was, sheer speculation, because there were no objective facts 

### that were decided on punishment. Joldan v. Stata, 256 S.W.3d 286, 293 (Tex.Crim.App. 2008) Page 4 of 12The Petitioner's constitutional Right's were substantially harmed, and the Court of Appeal's decision was improper at best, and a severe departure from the accepted and usual course of judicial procedure. The Conduct depicted is not illegal, and has

no relevance in the instant case. ARGUMENT NUMBER TWO The Court of Appeals recognized, "This instruction is 

### erroneous. See, e.g., Ktlhn, 393 S.W.3d at 524; UaKtln V. State, 335 S.W.3d B67, B76 (Tex.App.-Austin 2011, pet ref'd)" (Slip Op. at 7) However, the Court of Appeals held an egregious harm 

### analysis under klmama V. State., 686 S.W.2d 157 (Tex. Crim. App. 1985) This application is misplaced. The function of the jury charge is to instruct the jury on 

### the law applicable to the case. 9i*kiM v. State., 694 S.W.2d 330, 338 (Tex.Crim.App. 1995) Furthermore, pursuant to Tex. Cdoe Crim.Proc art. 36.14, the trial judge "shall" provide the jury with a written charge distinctly setting forth "the law applicable" to the case. Id. The unambiguous use of the word "shall" imparts a duty upon the Trial Court. See, Tex.Gov't Code § 311.016(2) Therefore, when the jury charge error involves failure to submit an instruction concerning the law applicable to the case, a defendant is not required to make an objection or request to have the instruction included in the jury charges. 

### Tex. Code Crim.Proc. art 36.14; TaylOK V. State, 332 S.W.3d 4B3, 493 (Tex.Crim.App. 2011). The trial judge is "ultimately responsible for the accuracy of the jury charge and accompanying 

### instructions." Velgado V. State, 235 S.W.3d 244, 249 (Tex.Crim.App. 2007) Page 5 of 12This Honorable Court reaffirmed that all jury charge errors, including errors or omissions in the verdict form, are cognizable
on appeal despite lack of objection in Trial Court. See, 3en.n4.nQb 

### V. Statl, 302 S.W.3d 306, 311 (Tex.Crim.App. 2010) However, due to the fact that there was no objection, the charge was subjected 

### to a harm analysis under klmanza, 666 S.W.3d at 171. Though the Court of Appeals attempts to mitigate the

erroneous jury charge by viewing the charge as a whole, it substantially fails to demonstrate any actual mitigating points. Instead, the Court of Appeal points to two insignificant portions of the jury charge in it's opinion. (Slip Op. at 7-8) The fact that one of the portions of the jury charge was requested specifically by the Petitioner demonstrates that the charge was recognized 88 defective, and counsel though not objecting to the

erroneous portion of the charge, sought to limits its influence. (Slip Op. at 7) The Court of Appeals further erred in it's reasoning by pointing out that both the Petitioner and F.G.'s testimony failed to provide any specific dates. (Slip Op. at 10) Though no specific dates were enunciated by the Petitioner, a specific time frame was, late 2011 through early 2012. Id. The Court of Appeals took an exceedingly one sided view of the record in favor of the alleged victim F.G. The nature of a crime should not weigh any heavier from one case to another. Thus, the Court of Appeals decision haa departed from the accepted and usual course of judicial proceedings as to call for

an exercise of this Honorable Court's power of supervision. Page 6 of 12ARGUMENT NUMBER THREE Article I § 10, guarantees an accused the right to be informed about, and not simply be aware of the nature and cause 

### of the accusation. ttaid V. State., 829 S.W.2d 7B7, 794 (Tex.Crim.App. 1992) The Fifth Amendment of the U.S. Constitution, guarantees that a criminal defendant will be tried only on charges alleged in grand jury indictment, which cannot be be broadened or altered 

### except by grand jury. Unlttd State.6 V. kxlin, 947 F. 2d 139, 144 (5th Cir. 1991); citing, StlKont V. UnltZd StatZ6, 361 U.S. 212, 215-17 (1960) In the instant case, the indictment was altered far more than a mere constructive amendment. Instead, the indictment was completely altered in such a fashion that it altered the operable facts of the charge, defensive theories, and defense strategies. When the jury is allowed to convict the defendant upon a factual basis that essentially modifies an essential element of the offense charged, reversal is automatic, because defendant may have been convicted on a ground not charged in the indictment. Unitid State.* v. VounQ, 730 F.2d 221, 223 (5th Cir. 1984); citing StlKOM, 361 U.S., at 219 Texas Code of Criminal Procedure art. 28.10(a) requires "the court shall allow the defendant not less than 10 days, * * * to respond to the amended indictment or information." (eaphaaia added) This was not accomplished, and further was not even allowed. The State waited until a mere three days prior to trial to motion the trial court under 28.10, then the court, out of the presence of the defendant or counsel, granted the motion and Page 7 of 12interlineated the indictment on a Saturday. (CR 42, 46, CRS 2; 10 RR 1, 10) Thereby, giving the defendant zero notice of the altered charging instrument. 

### The United States Supreme Court in StlAone., supra, long ago held that such an amendment is unconsitutional, therefore, in the instant case, the Court of Appeals holding that the "record supports that an effective amendment was msde to the indictment to allege continuous sexual abuse," is improper, and erroneous. (Slip Op. at 14) This is further aggravated by the fact that the Court of Appeal held that the Judgement Nunc Pro Tunc that altered the judgement entered on Feb. 6, 2013, on Feb 26, 2013, [20 days after trial, and after Notice of Appeals was filed] was valid. (Slip Op., at 16-17) This was also accomplished outside the presence of the Petitioner. (Slip Op. at 14) This demonstrates that the Trial Court was in actuality relying upon the original charging instrument, and not the interlineated indictment. Further, the interlineated indictment was not filed with the District Clerk prior to trial. These issues were completely ignored by the Court of Appeals Thus, the Court of Appeals has decided an important question of federal law in a way that conflicts with the applicable decisions of the Supreme Court of the United States, and thia Honorable Court, and the opinion has so far departed from the accepted and usual course of judicial proceedings as to call for

an exercise of this Honorable Courts power of supervision.
ARGUMENT NUMBER FOUR A videotaped interrogation of Petitioner that was admitted

aa State's Exhibit Number One. (12 RR 35, 52-53, 62) Detective Page B of 12Roberta and Tyler Police Department Officer Edgar Zapata participated. (12 RR 27-28, 54,55; SX-1/Tape 1: 9:15-10:00) 

### Officer Zapata gave Petitioner a "standard HiKanda warning," in Spanish, and testified Petitioner understood. (CR 58-59; 12 RR 

### 20-26, 28-29, 62; SX-1/Part 1: 10:20). tilKanda V. kKizona, 384 U.S. 436 (1966)(providing that a defendant must be informed about his right to remain silent, the danger that a statement can be used against him, his right to counsel and his right to appointed counsel). In Texas, an additional warning is required that the accused has the right to terminate an interview at any time. Tex. Code Crim.Proc. art. 38.22 § 2(a)(5). The Court of Appeals focused on Petitioner's Fifth Amendment right to remain silent, completely ignoring the Sixth Amendment right to counsel. (Slip Op. at 17-19) In 198B, the Supreme Court of the United States held under 

### Hiianda, that a presumption arises when a suspect, by any means, request counsel, that he considers himself unable to deal with pressures of custodial interrogation without legal assistance. 

### kKizona V. Robelt*On, 486 U.S. 675, 664 (1988); see aleo, EdwaAd*

u. AtUzona, 451 U.S. 477 (1981). Detective Zapata stated (or stated in effect) "OK, at first he said he does not want to talk, because he does not understand what is going on...I told him we already explained to him why he is under arrest and he says he does not have means to get a lawyer...he does not want to talk because he does not know what is going on." (SX-1/Part 1: 11:30-12:00) Detective Roberts replied or replied in effect "a lawyer can be appointed for him. By the Court. At a later time. " Page 9 of 12(SX-1/Part 1: 12:00)(emphasis added) Detective Zapata indicated that Petitioner wanted to know what would be asked (if Petitioner agreed to continue without a lawyer.) (SX-1/Part 1: 12:30). This in and of itaelf leads to a Sixth Amendment violation. "When accused has expressed desire to deal with police only through counsel, accused is not subject to further interrogation by authorities until counsel has been made available." k*4.zona v. 

### UauKO, 481 U.S. 520, 525--226 (1987); see also, RobtltiOn, 466 U.S. at 682-683. Further, once accused has requested an attorney, any waiver is invalid outside presence of an attorney. Id. The Court of Appeals recognized that the issue was preserved both by written motion and at trial. (Slip Op. at 17-18) However, the Court held that a "written motion is insufficient in itself to preserve for appeal the specific argument that Roberts told Appellant that his right to appointed counsel did not not become effective until after he was interviewed." (Slip Op at 18) This does not agree with well established federal law as determined by the Supreme court of the United States. The Court of Appeals makes an "assum[ption] arguendo that Appellant preserved the issue he now seeks to raise," (Slip Op. at 18) knowing the issue was well preserved both in writing and before the trial court orally. Petitioner opposed admission of the videotape properly on the ground that he was unaware that he 

### was waiving his VUXanda rights because he had been drinking a lot. (12 RR 32-34, 62) However, once the Petitioner asserted his right to counsel, the burden of proof shifted from the Petitioner, to the State to demonstrate the right had not been Page 10 of 12invoked, this is a heavy burden to meet, and one that was not met 

### by the State, or required by the Court of Appeals. See, Upton V. State, 853 S.W.2d 557 (Tex.Crim.App. 1994) "The court must give a broad, rather that a narrow interpretation to a suspect's request 

### for counsel." SoUaK V. JotlMOH, 237 F.3d 411, 455 (5th Cir 2000)(quoting lUchigan v. JacfeaOlt, 475 U.S. 625, 633 (1986)) An Appellate Court should always use the broader brush of telling the whole truth as this can paint a very different picture than 

### the one presented at trial. Social V. QlZtkl, 36B F.3d 441, 450 (5th Cir. 2004) The protections in the Texas oral confession statute against 

### involuntary statements is broader than federal HiAanda or due process protections. Tex. Crim. Proc. arts 38.22 §3(a), 3B.23; HVtanda, supra. Voluntariness under state law is to be measured according to the totality of the circumstances, with the State 

### having the burden of proof. klvaJtado V. State, 912 S.W.2d 199, 211 (Tex.Crim.App. 1995) The State has not met this burden, in fact the Court of Appeals wholly failed to hold the State to any burden whatsoever. Therefore, the Court of Appeals has so far departed from the 

### accepted and usual course of judicial proceedings 88 to call for

an exercise of this Honorable Courts supervisory power, in that the Court of Appeals has decided an important question of state and federal law in a way that conflicts with the applicable decisions of this Honorable Court and the Supreme Court of the United States. Page 11 of 12PRAYER FOR RELIEF For the reasons stated above, it is respectfully submitted that the Court of Criminal Appeals of Texas should grant this Petition for Discretionary Review. Respectfully submitted,



## Ce^orc feoW?. Cesar Gomez TDCJ-ID # 1839985 Eastham State Farm 2665 Prison Road # 1 Lovelady, Texas 75851

CERTIFICATE OF SERVICE The undersigned Petitioner/Appellant hereby certifies that a true and correct copy of the foregoing Petition for Discretionary Review has been mailed, U.S. mail, first-class postage prepaid, to the Office of the Criminal District Attorney for Smith County, Dillion Matt Bringham III, 100 N. Broadway, Tyler, Texas 75702, and to the State Prosecuting Attorney, P.O. Box 12405, Austin, Texas 7B711, on this the 15th day of April, 2015. 

## .fftSOTf ^O^M/Zn Cesar Gomez TDCJ-ID # 1839985 Eastham State Farm 2665 Prison Road # 1 Lovelady, Texae 75851

Page 12 of 12APPENDIX - A OPINION OF THE TWELFTH COURT OF APPEALS No. 12-13-00050-CR CESAR GOMEZ, Appellant

vs. THE STATE OF TEXAS, Appellee.

### COURT OF APPEALS 

### TWELFTH COURT OFAPPEALS 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 ofSmith 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 ofthis court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that thejudgment 

### ofthe court below be in all things affirmed, and that this decision be certified to the court below for observance. 

### Brian Hoyle, Justice. PanelconsistedofWorthen, C.J., and Hoyle, J.

### NO. 12-13-00050-CR IN THE COURT OF APPEALS 

### TWELFTH COURT OFAPPEALS DISTRICT 

## TYLER, TEXAS CESAR GOMEZ, § APPEAL FROM THE 241ST APPELLANT 

### V. § JUDICIALDISTRICTCOURT THE STATE OF TEXAS, 

### APPELLEE § SMITHCOUNTY, TEXAS
OPINION 

### Cesar Gomez appeals his conviction forcontinuous sexual abuse of a child younger than 

### fourteen years ofage, forwhichhewas sentencedtoimprisonmentfor lifewithoutthepossibility ofparole. Appellantraisesfourteen issues onappeal. Weaffirm.

Background 

### Appellant began sexually abusing his daughter, F.G., in2006 when she was eight years old. According toF.G., thesexual abuse continued until March 1,2012, when shewas 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 otherthings, an expensive video surveillance system withmultiple cameras, one ofwhich was aimed at F.G.'s bed and the other ofwhich was aimed at the bed in the master bedroom. 

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

## guilty." Theindictmentwas lateramended1 tochargeAppellantwithcontinuous sexualabuseofa Appellanthas raised severalissues concerning whethertheindictmentwasproperlyamended.

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

### found Appellant "guilty" as charged. After a trial onpunishment, the jury assessed Appellant's 

### punishment at imprisonment for life without thepossibility ofparole. The trial courtsentenced Appellant accordingly, and this appeal followed.

Admissibility ofPunishment Evidence 

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

### discretion inadmitting twophotographs during his trial onpunishmentinviolation ofTexas Rules ofEvidence 401, 402, and 403. Standard ofReview and Governing Law 

### We review a trial court's ruling on the admissibilityofevidence for an abuse ofdiscretion. 

### Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g). "That is to say, aslong as the trial court'sruling was at leastwithin thezone ofreasonable disagreement, the appellate court will not intercede." Id. Furthermore, if the trial court's evidentiary ruling is correcton anytheory of lawapplicable to thatruling, it will not bedisturbedevenif thetrialjudge 

### gave thewrong reason for a correct ruling. SeeDe La Pazv. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). 

### Under the Texas Rules ofEvidence, relevant evidence is generally admissible. Tex. R. Evid. 402. Texas Code ofCriminal Procedure, Article 37.07, Section 3(a)(1), which governs the 

### admissibility ofevidence during thepunishmentphase of anoncapital trial, states, "Regardless of the plea and whether the punishment [is] assessed by the judge or the jury, evidence may be offeredby the stateand thedefendantas to anymatterthecourtdeems relevanttosentencing. ..." Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2014). In discussing the practical effect ofArticle 37.07, the Texas Court ofCriminal Appeals has stated as follows: [U]nder Article 37.07, the admissibility ofevidence in a non-capital trial is a matter of 

### policy, including the policy ofgiving complete information to the jury to allow it to tailor an appropriate sentence forthedefendant. The result isthatwhatisrelevant for thejury tohearduring 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). Withrespect to 

### therelevance ofphotographic evidence, the courtofcriminal appeals furtherinstructs asfollows: Aphotograph should add something that isrelevant, legitimate, and logical tothe 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 onthispoint: Ifthere are elements of a photograph that are genuinely helpful to the jury in making its decision, thephotograph is inadmissible only if theemotional andprejudicial aspectssubstantially outweigh the helpful aspects. 

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

### Under Rule 403 ofthe Texas Rules ofEvidence, even relevant "evidence may be excluded 

### if itsprobative value is substantially outweighed by the danger of unfairprejudice ...." 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 andreviewing courts toanalyze andbalance (1) theprobative value of 

### the evidence (2) the potential to impress the jury in some irrational, yetindelible, way, (3) the time needed to develop the evidence, and (4) the proponent's need for the evidence. SeeErazo, 

### 144 S.W.3dat489. Inmaking thisdetermination, weconsiderfactors including (1) thenumber of exhibits offered, (2) theirgruesomeness, (3) theirdetail, (4) their size, (5) whether they are black andwhite or color, (6) whether they are close-upshots, (7) whether the body is naked orclothed, 

### (8) theavailability of othermeans ofproof, and (9) othercircumstances 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 twophotographs recovered from Appellant's 

### cellular telephone. Each of thesepictures was takenfrom Appellant's point ofview. The first 

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

### Appellant's wife placing hertongue on theunderside of his penis. Appellant objected to the admissibilityofthesephotographs, arguing thatthey were notrelevant andwere "moreprejudicial thanprobative." The trial court overruledAppellant's objections.2 Relevance 

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

### were ofAppellant's penis, "and that's whatthatlittle girlhad to lookat for sixyears." And while 2Thereafter, theparties discussed with thetrial court whether thepenis depicted in thepicture belonged to 

### Appellant. The trial court admitted the photographs conditioned onthe State's proving Appellant's identity therein. Later, the State called Appellant's girlfriend as a witness. She identified Appellant's wife inthe photographs and further identifiedthepenis depicted inthephotographs as Appellant's. The trial courtindicated its intenttoadmitthe 

### photographs for all purposes. Appellantobjected generally. The trial courtoverruledAppellant's objections "forthe 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).

### 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. Anunderlying 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 beingintoxicated. Contrary to thelimited timeline ofabuse asserted byAppellant, F.G. testified thatAppellant regularly sexually assaulted her in herbedroom from 2006through 2012. When officers searched Appellant's house, they discovered, among other things, a $1,200.00 video surveillance system withmultiple cameras, one of which was aimed at F.G.'s bed and the other ofwhich was aimed at the bed in the master bedroom. The system was connected through 

### thewalls to a recording device located in the masterbedroom with a monitor thatdisplayed 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 thatAppellant 

### 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 cellulartelephone depicting his 

### wife performing fellatio on him tend to support the State's theory that Appellant regularly engaged invoyeurism.4 Therefore, the State's establishing thatAppellant engaged invoyeurism andusedhisexpensive surveillance system tofurther that end washelpful to thejury inassessing Appellant's punishment because it contradicted his assertion that his sexual abuse ofF.G. was limited to ahandful ofregrettable encounters as a result of his beingintoxicated. Rather, ittends to show thatAppellant invested a substantial sum of money and timeinstalling a video system to 

### record himselfsexually abusing F.G. Accordingly, weconclude that the trial court did not err in overruling Appellant's relevance objection to these exhibits.

3The record reflects thatAppellant did notfrequently sleep in themasterbedroom. ButF.G. toldthenurse who examined her thatwhen Appellant would sexually assault her in herbedroom, he would go into the master 

### bedroom afterward. Thejuryreasonably could have concluded from this evidence that Appellant went to themaster bedroom on these occasions to watch the video taken ofhis sexual abuse ofF.G. 

### 4A"voyeur" is aperson who derives sexual gratification from observing the sex organs or sexual acts of others, especially from asecret vantage point. See TheAMERICAN HERITAGE DICTIONARY 1356 (2nd College Ed. 1982).Daneer ofUnfair Prejudice 

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

### outweighedby the dangerofunfair 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. SeeTex. 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 ofitself, evidence tending to support that he did so regularly over a period of 

### years ratherthan atrandomwas extremelyhelpful tothejuryinassessinghispunishment.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 arelatively short timedeveloping theevidence during a very briefexchange withDetective Gregg Roberts concerning the recovery of the pictures and a slightly longer period spent 

### questioning Appellant's girlfriendinordertoidentifythesubjects of thephotograph.6 As for the exhibits, they are two 8"xl0" 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 thejury in someirrational way. Indeed, Appellant'sphotographing his wifeduring her performance of oral sex and the secondary gratification he received from having taken the 

### photograph might be considered to berepugnant by somejurors. But itspotential 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.,
5We are unaware ofany alternative evidence the State couldhave offeredtoprove Appellant's proclivity for 

### voyeurism. Inhis brief, Appellant suggests analternative means ofpermitting thejurytoview Appellant's genitalia byallowing Appellanttopose for anonprovocativepicture. Ofcourse, Appellant's suggestion ismade inresponse to 

### the reasons provided bythe State attrial for admitting thephotograph andhas no bearing onthis alternative theory of relevance. 

### 6The State's questioning ofAppellant's girlfriend for this purpose takes place over approximately three pages of the reporter's record.

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

### pet. refd) (mem. op., not designated forpublication) (the appellant's possession of a large cache 

### ofpornographic pictures andvideos depicting young girls likelyto beconstrued as lessheinous by jury than detailed evidence it heardconcerning theappellant's sexuallyassaulting aneleven-year

### old girlwhile 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 ofunfair prejudice. 

### Appellant's first, second, third, and fourth issues are overruled.
Charge Error

- Increasing Chronological Perimeterfor Offense 

### In his fifth issue, Appellantargues that the trial court erred "in failing to giveinstructions to contextualize thenonbinding date of [the] offense in order to prevent reliance on conduct [that occurred] outside of thechronologicalperimeter" forcontinuous sexual abuse of a child. Standard ofReview 

### We review claims of jury charge error under the two pronged test set out inAlmanza v. State,686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g); seeKuhn v. State,393 S.W.3d 

### 519, 524 (Tex. App.-Austin 2013, pet. refd); Swearingen v. State, 270 S.W.3d 804, 808 (Tex. 

### App.-Austin 2008, pet.refd). We firstdetermine whethererrorexists. Ngov. 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. Thedegree of harmrequired forreversal depends onwhetherthat error waspreservedin 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, 270S.W.3d at 808. By contrast, where no objection is made to charge error, reversal is required 

### only ifthe error resulted in "egregious harm." See Neatv. 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 ofsexual abuse committed before that date.7 See Kuhn, 393 S.W.3d at524. Moreover, thestatute does notapplyto anoffense committed against a 7ActofMay 18, 2007, 80thLeg., R.S., ch. 593, §§ 1.17, 4.01(a), 2007 Tex. Gen. Laws 1120, 1127, 1148.

### 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 afterNovember 21,2011.8 Specifically, in theabstractportion of thecharge, thejury wasinstructedasfollows: You are instructed that the State is not bound by the specific date which the offense, if any, is alleged in theindictment tohave been committed, but that a conviction may be hadupon proof that the offense, ifany, was committed at any time prior to the filing of the indictment which is within theperiod oflimitations. There is nolimitation period to theoffense ofcontinuous sexual abuse ofa 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. refd). Egregious Harm Analysis 

### Because Appellant did not object to this instruction, we apply the "egregious harm" 

### standard wherein reversal isrequired only if thecharge errorwas "so egregious andcreated 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, 686S.W.2d at 171. Indetermining whether anappellant 

### 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 otherrelevant information revealed by therecord of the trial as a whole. See Taylor v. State, 332S.W.3d483, 489(Tex. Crim. App. 2011);Almanza, 686 S.W.2d at 171. We 

### will examine anypart of therecord thatmay illuminate theactual, notjusttheoretical, harmto the accused. SeeTaylor, 332S.W.3d at 489-90;Kuhn, 393 S.W.3d at 525. Errors which result in egregious harm arethose thataffecttheverybasis of thecase, deprive thedefendant of avaluable 

### right, vitally affect the defensive theory, ormake acase for conviction clearly and significantly more persuasive. See Taylor, 332 S.W.3d at490. Egregious harm is adifficult standard toprove and such a determination must be done on a case-by-case basis. SeeHutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). The Court's Charge 

### Based on ourreview of theentirety of the court'scharge, wefirst note that theapplication 

## paragraph, which immediately precedes the erroneous abstractparagraph, correctly instructedthe jurythattoconvictAppellant, itmustfindbeyond areasonable doubtthathe,

:F.G.'s fourteenth birthdaywasNovember22,2011.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 ofage or older, commit two or more acts ofsexual abuse against a child youngerthan 14 years ofage. 

### As a result, the application paragraph mitigates against finding that any error in the abstract portion ofthe charge was egregious. SeeKuhn, 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 requestedby Appellant:

You are instructed that ifthere 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, ifany were committed[,] and even then[,] you may only consider the same in determining the motive, opportunity, intent, preparation, plan, knowledge, identity ofthe defendant or absence ofmistake or accident, ifany, in connection with the offense, ifany, alleged against him in the indictment in this case, and for no otherpurpose. 

### SeeKuhn, 393 S.W.3d at 530 (considering trial court's use ofdetailed limiting instruction injury charge concerning evidence ofuncharged offenses or bad acts). Our reading ofthe charge as a whole weighs against a conclusion that Appellant was denied a fair and impartial trial. See id. ArgumentofCounsel 

### Based on our review ofthe arguments ofcounsel, we note that the prosecuting attorney 

### emphasized the long term nature ofAppellant's sexual abuse ofF.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 schemeand plan, it shows hismotivation. And, youknow, motivation is realsimple. 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 ofmind. So that's why you're entitled to know about the start date and the end date.

### Previously, during voir dire, the prosecuting attorney gave thejury 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 of30 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 Novemberthe 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 ofthe statute, the correctly worded application paragraph, and the significance of the dates alleged in the indictment. He informed thejurythat [w]e have to prove that the defendant, whom she identified, had sex with her, had continuous sex with her from September the 1st of2007 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 of2012. 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 oftimes 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 overthe 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 aduration of 30 daysor morebetweenSeptemberthe 1st,2007through November the 21st, 2011? Yes, he did.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 ofthe instant case, when the prosecuting attorney in Kuhn emphasized 

### instances ofsexual abuse that occurred prior to the enactment ofthe statute, he did not make any effort to denote for thejury 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 offinding egregious harm because (1) there were multiple other instances where the prosecuting attorney informed thejury ofthe correct time frame it should consider, (2) the abuse that occurred prior to the effective date ofthe statute could permissiblybe considered by the jury as circumstantial evidence ofthe abuse that occurred after the effective date ofthe statute, and (3) thejury charge contained a limiting instruction prohibiting thejury from considering the 

### uncharged abuse for impermissible purposes. Seeid. 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 ofour concluding that Appellant was denied a fair and impartial trial. The State ofthe 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 ofthe statute, her testimony concerning whether he sexually abused her during the relevantperiod 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.

'Appellantmade thisstatementduring hisinterview onMarch5,2012.

10

### The jury was entitled to disbelieve Appellant and rely on F.G.'s testimony alone to determine the time period of herabuse. SeeTex. Code Crim. Proc Ann. art. 38.07 (West Supp. 2014) (conviction under Penal Code, Chapter21 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 purportedtimeline 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 ofAppellant's conduct between 

### September 1, 2007, and F.G.'s fourteenth birthday. SeeMartin, 335 S.W.3d at 876. Based on our review ofthe record, we cannot conclude that thejury was unable to infer 

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

### simplybecause the State did not elicit more detailed testimony from the childvictim. SeeKuhn, 393 S.W.3d at 529. Therefore, we conclude that the state of the evidence in the instant case 

### weighs heavily againstaconclusionthatAppellantwas denieda fair and impartialtrial. Seeid. Summation 

### Having consideredthe entirety of the jury charge, theargument 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 Appellantdid 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 ofa child.

11Governing Law 

### A criminal defendant is guaranteed the right to know the allegations against him contained in an indictmentreturned by a grandjury and to have a copy ofthe indictment. Tex. Const, art. I, § 10. An indictment vests the trial court with jurisdiction and provides the defendant with notice 

### ofthe offense with which he is charged so that he may prepare, in advance oftrial, 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. refd). Texas Code ofCriminal Procedure, Article 28.10 prescribes the following procedure for 

### amending an indictment:
(a) After notice to the defendant, a matter ofform or substance in an indictment or information may be amended at any time before the date ofthe trial on the merits commences. On the request ofthe defendant, the court shall allow the defendant not less than 10 days, or a shorterperiod ifrequested 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 ifthe amended indictment or information charges the defendant with an additional or different offense or ifthe substantial rights ofthe defendant are prejudiced.


### Tex. Code Crim. Proc. Ann. art. 28.10(a), (c) (West 2006). All amendments ofan indictment or information must be made with leave ofthe 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 grandjury to obtain a subsequent indictment or request an amendment ofthe 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 ofthe 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 ofthe charging instrument itself. Id. The amendment, then, was the actual alteration ofthe 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 anindictment. SeeRiney, 28 S.W.3d at 564. InRiney,

12

### the court overruled Ward and the cases relying on it, to the extent they required physical interlineation ofthe 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 ofthe original indictment is an acceptable, but not the exclusive means," ofamending an indictment. Id. at 565-66. Amendment ofthe 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 ofthe 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 ofthe offense to September 1, 2007. The interlineated indictment was forwarded to this court as part ofa supplemental clerk's record. See, e.g., Bolton v. State, No. 06-11-00268-CR, 2012 WL 5507404, at *5 n.l (Tex. App.-Texarkana 2012, Nov. 14, 2012, 

### pet. refd) (mem. op., not designated for publication). Further, the prosecuting attorney read the amended indictment into the record before thejury at the outset oftrial, 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. refd). Further still, the court's 

### charge tracked the amended indictment. Seeid. And although thejury 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, 

### Appellantneverfiled amotion toquash theamended indictment'0 anddid notobjecttoproceeding

10 Appellant filed amotion toquash the original indictment atsome pointin2012. That motionisincluded in a supplemental clerk's record. Thebasis 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 ofthe proposed amendment to the indictment well in advance oftrial, 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 ajudicial error. In his eleventh issue, Appellant contends that the trial court violated his right to due process by changing the date ofthe offense in itsjudgmentnunc pro tunc without Appellant's being present. 

### The trial court signed its judgment on February 6, 2013. Thatjudgment 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 ofthe 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 ofa 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. refd); State v. Garza, 824 S.W.2d 324, 325 (Tex. App.-San Antonio 1992, pet. refd). 

### The purpose of a nunc pro tunc order is to correctlyreflect 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 thatevidence relied upon by the Statesupports that any offense committed by Appellant occurred after F.G.'s fourteenth birthday.

14time. Smith, 15 S.W.3d at 298; Creeks v. State, 807 S.W.2d 853, 854 (Tex. App.-Dallas 1991, 

### pet. refd), overruledon othergrounds,Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.-Dallas 1991, pet. refd). Therefore, before ajudgment 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, 611 S.W.2d 518, 521 (Tex. Crim. App. 1984); Dickson v. State, 988 S.W.2d 261, 263 (Tex. App.-Texarkana 1998, pet. refd); Garza, 824 S.W.2d at 325. A judgment nunc pro tunc is improper when it has the effect ofmaking a new or independent order. Smith, 15 S.W.3d at 299 (citing Exparte Dickerson, 702 S.W.2d 657, 658 (Tex. Crim. App. 

### 1986)). The nunc pro tunc entry may be made to correct ajudgmentto 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 ofa 

### nunc pro tunc judgment, "but correction can be only as to what was done and not as to what should have been done." ExparteDopps, 723 S.W.2d 669, 671 (Tex. Crim. App. 1986); Chaney v. State, 494 S.W.2d 813, 814 n.l (Tex. Crim. App. 1973). 

### A judgment nunc pro tunc may correct only clerical errors in ajudgment, 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. refd). 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 ofthe 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. refd). Thus, the correction ofa 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 ofa controversy. Smith, 15 S.W.3d at 299. The determination ofwhether an error is clerical or judicial in nature is a question of law. As such, the trial court's findings and conclusions are notbinding on an appellate court. Id. Propriety ofJudgment Nunc Pro Tunc 

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

### 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

15rendered. 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 

### Appellantbefore thejury at the outset oftrial and is set forth in the court's charge. Thejury found Appellant "guilty" ofcontinuous sexual abuse ofa child under fourteen years ofage 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'sjudgment nunc pro tunc served to correct a clerical error. Appellant's tenth issue is overruled. Timeliness ofJudgment 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 ofa 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. refd); 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 suspendeduntil trial courtreceives 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. refd); 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. refd). 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 oflaw. See Shaw v. State, 539 S.W.2d 887, 890 (Tex. Crim. 

### App. 1976). But in a subsequent opinion, the court has stated that ifthe 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" toAppellant, we hold thatremanding 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 *l-2 (Tex. App.-Waco Oct. 13, 2004, 

### pet. refd (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 ofReview 

### 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 offact are based on an evaluation ofcredibility 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 ofthe law to the facts and uphold the trial court's 

### ruling if it is supportedby the record and is correct under any theory oflaw applicable to the case. Id. at 393-94 (citing State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000)). Preservation ofError 

### 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 statute" 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. SeeResendez 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 SeeTex. Code Crim.Proc. Ann. art.38.22 (West Supp. 2014).

172. The actions ofthe Tyler Police Department violated the constitutional and statutory rights ofthe Defendant under the Fourth, Fifth, Sixth[,] and Fourteenth Amendments to the United States Constitution, Article I, Section 9 ofthe Texas Constitution, and under Article 38.23 ofthe Texas Code ofCriminal Procedure. 3. Any statements obtained from Cesar Gomez were obtained in violation ofArticle 38.22 ofthe Texas Code ofCriminal Procedure and in violation ofthe rights ofCesar Gomez pursuant to the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution [and] Article I, Sections, 9, 10[,] and 19 ofthe Constitution ofthe State ofTexas. 

### At trial, Appellant urged his motion to suppress and stated the basis ofhis 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 ofwhat he was doing when he waived his Miranda rights. 

### Appellant's written motion to suppress is insufficient in itselfto 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. refd) (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 hisMirandawarnings and Appellant understood what was said to him. Zapata further testified that Appellant waived his Miranda rights, and

12SeeMiranda v. Arizona,384U.S.436, 86 S. Ct. 1602, 16L. Ed. 2d 694(1966).

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### agreed to be interviewed. Zapata stated that Appellant understood what he was doing when he waived his Miranda rights. 

### The basis ofAppellant'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 suspecthis rights. Id. 

### (citing Duckworth v. Eagan, 492 U.S. 195, 202, 109 S. Ct. 2875, 2880, 106 L. Ed. 2d 166 (1989)). InDuckworth, the Court scrutinized a warning that met Miranda's basic formula, but in the context ofan additional statement that "[w]e have no way ofgiving you a lawyer, but one will 

### be appointed for you, ifyou wish, ifand 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 ofMiranda 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 ofthis erroneous statement does not require suppression ofAppellant'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 motionto quash cannotbe included in therecord.

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### In his reply brief, Appellant elected to withdraw his thirteenth issue ifthe video ofhis interview with investigators submitted by the State as part ofa 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 ofhis Motion to Quash and Exception to Substance ofIndictment 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)

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