Conner v. State

Full title: CHARLES M. CONNER, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: Apr 13, 2005

No. 10-04-00212-CR (Tex. App. Apr. 13, 2005)

Opinion

No. 10-04-00212-CR

Opinion delivered and filed April 13, 2005. DO NOT PUBLISH.

Appeal from the 159th District Court, Angelina County, Texas, Trial Court # 24254.

Affirmed.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

MEMORANDUM OPINION

BILL VANCE, Justice.

Charles Conner was indicted on two counts of aggravated sexual assault on a child. A jury found him guilty on both counts and assessed punishment at ninety-nine years' confinement. He brings two issues on appeal: (1) the trial court erred in denying his request for instructed verdict because the State failed to prove the offenses occurred on the dates alleged in the indictment; and (2) the trial court erred in denying his motion for mistrial after the prosecution introduced a videotaped statement referring to Conner's prior incarceration.

We will overrule the issues and affirm the judgment.

BACKGROUND

The alleged victim, Conner's daughter, testified that her father touched her inside her private part with his finger. A sexual assault nurse who examined the alleged victim testified that the victim told her that Conner had touched her sexual organ many times, the last time having been about a week before the examination. The nurse testified that there was no physical evidence of trauma. Family members who lived in the same home as Conner and his daughter testified for the State. Conner's mother and brother testified regarding Conner's behavior with his daughter, and Conner's brother's wife testified as an outcry witness. The State introduced Conner's videotaped statement to police. Conner testified in his own defense.

Dates of Offenses

At the close of the State's case, Conner made a motion for directed verdict based on his assertion that the State did not properly prove the dates as alleged in the indictment. Conner argues that the trial court erred in denying the motion. The indictment alleges that Conner committed aggravated sexual assault of a child on or about November 20, 2003, and on or about August 1, 2003. The "on or about" language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period. Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App. 1997); Scroggan v. State, 799 S.W.2d 679, 680 n. 3 (Tex.Crim.App. 1990). Conner was indicted on December 18, 2003. The limitation period for the offense of aggravated sexual assault is ten years from the eighteenth birthday of the victim of the offense. TEX. CODE CRIM. PROC. ANN. art. 12.01 (Vernon 2003). The dates of the offenses alleged are anterior to the indictment and within the statutory limitation period. Conner argues that the State failed to prove any dates at all. When an indictment alleges that some relevant event transpired "on or about" a particular date, the accused is put on notice to prepare for proof that the event happened at any time within the statutory period of limitations. Thomas v. State, 753 S.W.2d 688, 692 (Tex.Crim.App. 1988). The examining nurse testified that the alleged victim told her that the last time Conner touched her was approximately a week before the interview, which was conducted on November 24, 2003. The victim testified that Conner began touching her about a week after he moved in with the family, and that the touching continued to happen at the time the family moved to Lufkin. She thought that was August of 2003, but was not sure. Conner's mother testified that they moved to Lufkin in October 2003. Because the evidence is sufficient to prove the offenses occurred on or about the dates alleged in the indictment, the trial court did not err in denying Conner's motion for a directed verdict. We overrule this issue.

Prior Incarceration

Conner argues that the trial judge erred in denying his motion for mistrial. During the guilt-innocence phase, the prosecution played a videotape of Conner's statement to police. On the video, Conner mentioned his having been released from the penitentiary. Outside the presence of the jury, defense counsel made a motion for a mistrial. The prosecution responded to the motion by explaining that the tape had been edited to delete references to Conner's time in prison, but that this particular reference had inadvertently been left on the tape. The trial court denied the motion for mistrial because the reference was innocuous and did not rise to the level of prejudicing the defendant. We review an order denying a motion for mistrial for an abuse of discretion. Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003). A trial court may properly exercise its discretion to declare a mistrial where an instruction to disregard could not cure the prejudice stemming from an event at trial and would not leave the jury in an acceptable state to continue the trial. Young v. State, 137 S.W.3d 65, 69 (Tex.Crim.App. 2004). A reference to an extraneous offense is generally cured by a prompt instruction to disregard. See Rojas v. State, 986 S.W.2d 241, 250 (Tex.Crim.App. 1998). An exception exists where the reference was clearly calculated to inflame the minds of the jury or was of such damning character as to suggest it would be impossible to remove the harmful impression from the jurors' minds. Id. We find that the reference on the videotape was not so prejudicial that it could not have been cured by an instruction to disregard. The trial court thus did not err in denying the motion for mistrial. We overrule the issue.

CONCLUSION

Having overruled the issues, we affirm the judgment.