Garcia v. State

Full title: MARIO GUADALUPE GARCIA, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 28, 2011

No. 05-10-00291-CR (Tex. App. Jul. 28, 2011)

Opinion

No. 05-10-00291-CR

Opinion Filed July 28, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F08-59015.

Before Justices RICHTER, LANG, and FILLMORE.

OPINION

Opinion By Justice FILLMORE.

A jury convicted appellant Mario Guadalupe Garcia of continuous sexual abuse of a child younger than fourteen years of age, and assessed punishment of thirty-two years' imprisonment. In three issues Garcia contends (1) the indictment in his case was unconstitutionally vague because it failed to provide proper notice of the predicate offenses related to the alleged continuous sexual assault of a child, (2) section 21.02 of the Texas Penal Code is unconstitutional because it violates his right to a unanimous jury verdict under the United States and Texas Constitutions, and (3) the evidence was insufficient to support a finding that he committed any act of sexual assault against X.F. We affirm the trial court's judgment.

Factual Background

Garcia was charged with committing, "on or about and between" January 1 and August 8, 2008, two or more acts of sexual abuse against his stepdaughter, whom we refer to as X.F. During the relevant period, X.F. was ten years of age and lived at her mother's home located in Dallas, Texas. We refer to her mother as S.B. Also living in S.B.'s home during the relevant period were Garcia, who was then married to S.B.; X.F.'s seven year old stepbrother, whom we refer to as S.G.; X.F.'s four year old stepsister, whom we refer to as Y.G; and a number of other individuals, including X.F.'s uncle Venancio and his family. S.B., who held both day and night jobs, generally left for her night job at about 5:00 p.m. and returned between 10:00 p.m. and midnight. X.F., S.G., and Y.G. went to bed between 9:00 and 9:30 p.m. X.F. slept in a bedroom shared by S.B., Garcia, S.G., and Y.G. X.F. slept on the floor and S.B., Garcia, S.G., and Y.G. slept in one bed. S.B. noticed that X.F.'s attitude toward Garcia changed in 2006 or 2007. X.F. did not like Garcia very much, and she spoke to Garcia in an aggressive tone. Venancio testified that X.F.'s attitude toward Garcia was sometimes harsh. The relationship between Garcia and X.F. was not as good as X.F.'s relationship with her biological father, with whom she would spend time periodically during 2008. In July 2008, S.B. traveled to Mexico to visit her ailing father. While she was away, X.F., S.G., and Y.G. stayed at the apartment of S.B.'s twenty-five year old niece, Lidia.¹ While residing at Lidia's apartment, X.F. told her teenage cousin, Y.M., about "things" Garcia had done to her. Y.M. testified that X.F. was sad and upset while they were talking. Another family member, Gollo, overheard X.F.'s conversation with Y.M., and Gollo told Lidia what he had heard. Lidia confronted X.F. about what X.F. had told Y.M. X.F. told Lidia that Garcia was abusing her, but she did not give Lidia details of the abuse, dates of the abuse, or how many times Garcia had abused her. Cirila Camargo, S.B.'s cousin, testified that in September or October 2009, she had a conversation with X.F. According to Camargo, X.F. indicated that it was Lidia who first suggested to X.F. that something inappropriate was occurring between X.F. and Garcia, and that X.F. thereafter simply acknowledged what Lidia had suggested. X.F. denied the statements attributed to her by Camargo. Upon S.B.'s return from Mexico, X.F., S.G., and Y.G. resumed residence at S.B.'s home where they again slept in the same bedroom as Garcia. S.B. was not told about X.F.'s conversations with Y.M. and Lidia concerning the conduct of Garcia. Shortly after her return from Mexico, S.B.'s father died. Venancio went to Mexico for a short time after his father's death. He returned around July 29, 2008. Four days later, Lidia told Venancio what X.F. had said about inappropriate conduct on the part of Garcia. Venancio did not talk to S.B about Garcia's conduct at that time because X.F. did not want him to. On August 8, 2008, Venancio contacted the police regarding X.F.'s complaints about Garcia's inappropriate conduct. Dallas Police Department patrol officer Tia Nobles went to S.B.'s home and spoke with X.F., Venancio, and Y.M. Officer Nobles testified that X.F. was standoffish, as if afraid to go into detail about what had occurred with Garcia. Officer Nobles determined that an offense of aggravated sexual assault had occurred, and, from information X.F. provided, indicated on the incident report that July 31, 2008 was the date of the offense. X.F. was able to identify the date and time of the incident because at the time she was watching a Spanish television program that aired on Thursday at 7:00 p.m. Officer Nobles asked another officer to bring S.B. from her day job to her home. S.B. first learned of X.F.'s accusations against Garcia when the police picked her up at work that day. X.F. testified that S.B. was angry that X.F. had not told her about the abuse. After S.B. arrived at her home, S.B., X.F., Venancio, and Y.M. were taken by the police to the Dallas Children's Advocacy Center (DCAC). Yesenia "Jessie" Gonzales, a bilingual forensic interviewer at DCAC, interviewed X.F. on August 8, 2008. The videotaped DCAC interview of X.F. was viewed by the jury. In the interview, X.F. said that she was ten years old and soon to be in the fifth grade. Garcia was thirty-two years of age. X.F. stated she had been brought to DCAC because in the night her stepfather, Garcia, "gets me and does things that he is not supposed to be doing." X.F. stated that Garcia "gets in my private stuff" and that Garcia had put his "middle part" in her "middle part" a lot of times. On a drawing of a male, X.F. circled the male genitalia to indicate what she referred to as Garcia's "middle part." On a drawing of a female, X.F. circled the female genitalia to show where Garcia "put his thing" in her "private part." She also drew a picture of Garcia's "middle part" and described it as pink where "the white stuff came out." When asked to describe the first time something inappropriate happened between her and Garcia, X.F. stated that it occurred at night when she was asleep on the bedroom floor. Garcia got on top of her and started "humping," and it felt hard in her middle part. She pushed him off, and he went to his bed. X.F. next described the first time Garcia put his "middle part" in her "middle part." X.F. indicated this also occurred when she was sleeping on the floor in the bedroom. Garcia had taken S.B. to work. When he returned, he touched X.F.'s private middle part with his hand. Garcia then removed X.F.'s pajama bottom and underwear. Garcia removed his clothing and "put his middle part into [X.F.'s] middle part." She indicated that Garcia "was going up and down" and that her middle part hurt. She saw "white stuff" coming out of Garcia's middle part and into his hands, at which point he ran to the bathroom located adjacent to the bedroom. X.F. said she thought this occurred in January 2008, because the weather was cold and she was on a school break around the new year. X.F. described the most recent incident of sexual abuse that occurred the week before the forensic interview. S.B. was at work. X.F. was sitting on the bed watching a Spanish television show that is broadcast only on week days.² S.G. was outdoors playing. Garcia came into the bedroom, grabbed X.F., took off her pants and underwear, pulled down his pants and underwear, got on top of her, and started "doing that humping," "going up and down." Garcia put "his middle part on [X.F.'s] middle part." X.F. did not know if Garcia's middle part was touching the outside or the inside of her middle part. X.F. said it made her middle part feel bad and made her middle part hurt. She stated this lasted about a minute and then Garcia ran to the bathroom. X.F. put her clothes on and went outside. X.F. stated that S.G. almost saw what occurred when he came running into the bedroom. However, she stated that she pulled up her underwear and pants and Garcia ran to the bathroom before S.G. had an opportunity to see what had occurred.³ At trial, Gonzales described X.F. as an average ten year old when she was interviewed. It did not concern Gonzales that X.F. could not give exact dates the abuse occurred. Gonzales testified that X.F. told her the abuse by Garcia happened a lot. X.F. drew a picture of X.F.'s penis. She described Garcia's penis as hard like a stick, the coloring of his penis, and indicated where the "white stuff" came out of Garcia's penis. X.F. said that the "white stuff" coming out of Garcia's "middle part" or "thing" happened a lot. X.F. said that the "white stuff" never got on her and always went into Garcia's hands and that Garcia would then run to the bathroom. X.F. testified that, when she was ten years old and in fourth grade, things changed between her and Garcia. When these circumstances changed, she felt uncomfortable when he touched her; it was "bad touching." For example, when X.F. was on the floor in the bedroom and Garcia was on the bed, Garcia started rubbing X.F. on her chest on the outside of her clothing. X.F. pushed Garcia's hands away and he stopped. This happened during the break from school after Christmas in January 2008; she remembered the time frame because it was cold outside. Subsequently, Garcia would get on the floor with X.F. On a few occasions, Garcia rubbed X.F.'s private parts outside of her clothing. After two or three times of Garcia rubbing X.F.'s private parts, Garcia "put his thing in [X.F.'s] thing." X.F. testified this was in February 2008. Exhibits were admitted in evidence on which X.F. had circled the chest area of a female showing where Garcia rubbed her chest and had circled the female's genitalia to show where Garcia "put his thing" and to show where Garcia rubbed her private part. X.F. also circled the male genitalia on a drawing of a male to show Garcia's "thing" that he put in her "thing." At trial, X.F. testified that she did not know how Garcia's middle part felt; in the forensic interview X.F. told Gonzales that it felt bad. The first time Garcia "put his thing in her thing" she was on the floor in the bedroom and S.G. and Y.G. were asleep on the bed in the bedroom. S.B. was at work. Garcia pulled X.F.'s pants and underwear down. He pulled his own pants down and placed "his thing in her thing." It felt uncomfortable. Garcia moved his body up and down on top of X.F. X.F. saw "white stuff" coming out of Garcia's "thing" and into Garcia's hands. Garcia went to the bathroom. X.F. pulled her pants back up. X.F. described an incident in which she was sitting on the bed watching a television program while S.G. and Y.G. were outdoors playing. Garcia came into the bedroom and pushed her down on the bed, pulled her pants down, and "put his thing in [her] thing." X.F. testified that sperm came out into Garcia's hands and he went to the bathroom. While X.F. told Gonzales in the forensic interview that S.G. came running into the bedroom during this incident, at trial she stated she and Garcia heard S.G. coming, and she was able to pull her pants and underwear up, and Garcia was able to enter the bathroom, before S.G. saw anything. This occurred during the summer of 2008 between the time X.F. finished fourth grade and began fifth grade. In court, X.F. identified Garcia as the perpetrator. X.F. testified that she did not know how many times Garcia "put his thing in her thing," but testified that it was more than twice. X.F. testified that this occurred more times than the specific incidents she described. X.F. told Gonzales that the last time something happened between her and Garcia was within the week before August 8, 2008. X.F. testified that when she referred to a week, she meant close in time and could be up to twelve days. It occurred after the incident X.F. recounted when she was watching television, and was close in time to when Venancio went to Mexico in July 2008. She testified this conduct started around February 2008 and the last time it occurred was before she started the fifth grade in August 2008. X.F. did not write down dates when things happened with Garcia because she was afraid S.B. would find what she had written. She did not tell her mother because she was afraid S.B. would not believe her. X.F. had been told by a friend about the friend's relative whose parents did not believe her when she reported sexual abuse to them. X.F. thought she would be punished if she reported the sexual abuse. Further, she believed that if she told anyone what was happening, people would say it was her fault for not reporting it sooner. Sabra Garibay, a plain-clothes detective, had been employed by the Dallas Police Department for twenty-six years and had served in the Child Abuse Unit for twenty years at the time of her testimony. On August 8, 2008, Detective Garibay worked at the Child Abuse Unit located at DCAC and was assigned to X.F.'s case. Detective Garibay obtained the assistance of another detective at the Child Abuse Unit, Detective Lisette Rivera, to interview the Spanish-speaking members of X.F.'s family. Forensic interviews at DCAC can be observed from behind a two-way mirror, and Detective Garibay watched the forensic interview of X.F. Within half an hour, Detective Garibay made the decision to arrest Garcia because there was sufficient information justifying the filing of charges of continuous sexual abuse against Garcia and because an immediate arrest was deemed necessary to stop continuing family violence. Garcia was arrested for suspicion of aggravated sexual assault of a child younger than fourteen years of age. Detective Rivera interviewed Garcia. After being told why he was at the police department, Garcia was advised of his Miranda rights.⁴ Garcia initialed and signed a card setting out his Miranda rights. Thereafter, Garcia wrote and signed a voluntary statement. Detective Rivera translated the statement written in Spanish by Garcia: Only that [X.F.] would look for me and she would insinuate that she wanted to have relations. But that one time I was a little drunk and it was that time that she climbed on top of me to have relations. Garcia's statement referenced one instance of "relations" with X.F. . Detective Rivera testified that "relations" in the context of Garcia's entire statement meant sex. Matthew Cox, M.D., a board certified pediatrician who worked at the Referral and Evaluation of At-Risk Children Clinic at Children's Medical Center (the REACH Clinic), testified he examined X.F. at the REACH Clinic on August 20, 2008. X.F. explained to Dr. Cox why she was at the clinic, indicating that her stepfather had done something bad to her, putting "his middle part in [her] middle part." X.F. described some pain during the sexual contact. She also expressed concern that she might be pregnant as a result of the contact with her stepfather, which Dr. Cox believed was some evidence X.F. understood the process of reproduction. X.F. indicated that her last sexual contact with Garcia had been about a month before the clinic visit. Delay in reporting sexual contact affects the examination conducted by Dr. Cox. When the child reports that the last contact occurred more than seventy-two hours before the examination, there is likely no DNA evidence. According to Dr. Cox, if the perpetrator ejaculated into his hands, the likelihood of finding forensic evidence upon immediate examination of the victim would be reduced; Dr. Cox indicated he would not expect to find forensic evidence under these circumstances after ten days had elapsed. Dr. Cox noted that the examination of X.F. was within normal limits for a child of ten years of age, meaning Dr. Cox did not see any signs of definite tissue injury to X.F. Dr. Cox testified that does not mean that X.F. was not sexually abused. Dr. Cox generated an assessment report indicating that the physical examination findings were indeterminate. Dr. Cox also found no evidence of sleep disturbances, eating disorders or problems, school problems, sexual acting out, abdominal pain, or vomiting. Based upon his examination, Dr. Cox could not determine whether or not sexual abuse had occurred. However, Dr. Cox testified that he may not be able to tell from examination of a child whether there was a penetrating sexual event or events. Dr. Cox testified that multiple studies show children known to have been sexually penetrated had hymen of normal appearance with no definite injury. There may be blood and tissue trauma when a child is penetrated by an adult penis, but that does not always occur. While a perpetrator may penetrate the lips of the child's genitalia or inside the vagina, it is not a sensation that most children are able to differentiate. According to Dr. Cox, penetration of the child's genitalia without full penetration may feel uncomfortable or may hurt. Felecia Crumedy, a therapist at DCAC, counseled X.F. during the course of thirty-five therapy sessions from February to December 2009. Crumedy testified that in therapy, X.F. identified Garcia as the person who abused her. Crumedy testified that children often cannot remember dates and times when sexual abuse occurred. X.F. indicated she felt sad that it had occurred. Early in therapy sessions, X.F. expressed fear that she might be pregnant. X.F. told Crumedy that she had been afraid to report what had happened out of a concern she would not be believed and would be in trouble. X.F. never recanted with regard to the accusations she made against Garcia, and Crumedy testified that it was clear to her that X.F. was telling the truth. X.F.'s sixth grade math teacher, Alexis Wilson, testified that in her opinion, X.F. was truthful and honest.

Notice in Indictment

Garcia was charged with violating section 21.02 of the Texas Penal Code, which provides, in pertinent part, that: (b) A person commits an offense if:

(1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and

(2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age.

Tex. Penal Code Ann. § 21.02(b) (West 2011). Garcia filed a pre-trial motion to quash his indictment on the ground that the indictment was unconstitutionally vague because it failed to adequately provide notice of the dates of the alleged offenses. The trial court denied the motion to quash the indictment. Garcia reiterates that contention in his first issue on appeal in which he asserts his indictment is unconstitutionally vague because it failed to provide proper notice of the predicate offenses the State intended to use to prove the "umbrella" crime of continuous sexual assault of a child younger than fourteen years of age. The right to notice is set forth in both the United States and Texas Constitutions. See U. S. Const. amend. VI; Tex. Const. art. I, § 10; State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). Additionally, the Texas Code of Criminal Procedure provides guidelines relating to the sufficiency of an indictment. See, e.g., Tex. Code Crim. Proc. Ann. art. 21.03 (West 2009) ("Everything should be stated in an indictment which is necessary to be proved."); Tex. Code Crim. Proc. Ann. art. 21.04 (West 2009) ("The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense."); Tex. Code Crim. Proc. Ann. art. 21.11 (West 2009) ("An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment. . . ."). Accordingly, the charging instrument must be specific enough to inform the accused of the nature of the accusation against him so that he may prepare a defense. Moff, 154 S.W.3d at 601. "An indictment is generally sufficient as long as it tracks the language of a penal statute that itself satisfies the constitutional requirement of notice." Lawrence v. State, 240 S.W.3d 912, 916 (Tex. Crim. App. 2007). A complaint that an indictment does not provide adequate notice alleges a defect in form. Olurebi v. State, 870 S.W.2d 58, 61 (Tex. Crim. App. 1994); Hodge v. State, 756 S.W.2d 353, 357 (Tex. App.-Dallas 1988, no pet.). A defect of form does not render an indictment insufficient unless the defect "prejudice[s] the substantial rights of the defendant." Tex. Code Crim. Proc. Ann. art. 21.19 (West 2009); Olurebi, 870 S.W.2d at 61. To determine whether the defendant had notice adequate to prepare his defense, we must first determine whether the charging instrument failed to provide some requisite item of "notice." Id. (quoting Adams v. State, 707 S.W.2d 900, 903 (Tex. Crim. App. 1986)). If the indictment gave sufficient notice, our inquiry ends. Id. If it did not, we must ask whether, in the context of the case, the deficiency had an impact on the defendant's ability to prepare a defense, and if so, how great was such impact. Olurebi, 870 S.W.2d at 61-62. In this case, the indictment alleged that "on or about and between" January 1 and August 8, 2008, Garcia did: during a period that was 30 or more days in duration, when the defendant was 17 years of age or older, commit two or more acts of sexual abuse against [X.F.], a child younger than 14 years of age, hereinafter called complainant, namely by the contact and penetration of the complainant's female sexual organ by the defendant's sexual organ. . . . Garcia complains that the indictment did not allege any particular act of sexual abuse as having occurred on any particular date. According to Garcia, the indictment "provided no details to identify the alleged acts in any way." Garcia complains that the indictment (1) alleged only that he committed two or more acts of sexual abuse against X.F. over the course of the period between January 1 and August 8, 2008, and (2) inadequately described the alleged acts of sexual abuse because it failed to allege the number of and the dates of the alleged acts of sexual abuse. The State responds that the indictment (1) tracked the applicable statutory language by alleging each element of the offense of the continuous sexual abuse of a child, see Tex. Penal Code Ann. § 21.02(b), and (2) identified the specific acts of sexual abuse allegedly committed by Garcia. The State argues that the language of the indictment alleging two or more acts of sexual abuse between January 1 and August 8, 2008 was sufficient to provide Garcia notice of when the acts of sexual abuse occurred, and that the specific dates of the acts of sexual abuse are not required for adequate notice because they are evidentiary in nature. We agree with the State. The State is not required to plead evidentiary facts which are not essential to provide notice. Livingston v. State, 739 S.W.2d 311, 321 (Tex. Crim. App. 1987); Epps v. State, 811 S.W.2d 237, 243 (Tex. App.-Dallas 1991, no pet.).⁵ The court of criminal appeals has held that the State need not allege a specific date in an indictment. Sledge v. State, 953 S.W.2d 253, 255-56 (Tex. Crim. App. 1997). When an indictment alleges an offense occurred "on or about" a specific date, this 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." Id. Here, the indictment alleged Garcia committed two or more acts of sexual abuse "on or about and between" January 1 and August 8, 2008. We conclude this was sufficient to provide Garcia notice of when the acts of sexual abuse were alleged to have occurred. See id. Based on the foregoing, we conclude that the indictment provided adequate notice of the offense with which Garcia was charged, enabling him to prepare a defense. See Moff, 154 S.W.3d at 601. We overrule Garcia's first issue. Constitutionality of Statute In his motion to quash the indictment, Garcia also contended section 21.02 of the penal code is unconstitutional because it violates his right to a unanimous jury verdict under the Due Process and Equal Protection Clauses of the United States Constitution and the due course of law provision of the Texas Constitution. Garcia reiterates this contention in his second issue on appeal, in which he contends section 21.02 of the penal code is unconstitutional because it allows a jury to convict a defendant without being unanimous as to the underlying predicate offenses which compose the umbrella offense of continuous sexual abuse of a child younger than fourteen years of age. Penal code section 21.02(d) provides: If a jury is the trier of fact, members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. The jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse. Tex. Penal Code Ann. § 21.02(d). As Garcia acknowledges in his brief, this Court has previously considered the constitutionality of section 21.02 of the penal code and concluded that it does not violate the unanimity requirement. Render v. State, 316 S.W.3d 846, 857 (Tex. App.-Dallas 2010, pet. ref'd), cert. denied, 131 S.Ct. 1533 (2011).⁶ We have also considered the Supreme Court's analysis in Richardson v. United States, 526 U.S. 813 (1999), cited by Garcia in his brief, and concluded it did not support the argument Garcia raises. See Render, 316 S.W.3d at 857-58.⁷ Garcia presents no new analysis or persuasive argument that would cause us to change our conclusion in Render. We overrule Garcia's second issue.

Sufficiency of the Evidence

In his third issue, Garcia asserts the evidence is insufficient to support a finding beyond a reasonable doubt that he committed any sexual assault against X.F. The Texas Court of Criminal Appeals has determined that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.) (following Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Under that standard, we determine whether, considering all of the evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt. Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899. We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Brooks, 323 S.W.3d at 899. A person commits the offense of continuous sexual abuse of a child younger than fourteen years of age if, during a period of thirty or more days, he commits two or more acts of sexual abuse and the victim of each act is a child younger than fourteen years of age. Tex. Penal Code Ann. § 21.02(b). As charged in this case, "sexual abuse" means aggravated sexual assault. See id. § 21.02(c)(4); § 22.021(a)(1)(B), (a)(2)(B) (West 2011).⁸ Garcia contends the evidence is insufficient to support a finding that he committed any act of sexual assault of X.F. Specifically, Garcia argues the evidence was insufficient to prove beyond a reasonable doubt that he committed continuous sexual assault by penetration of the complainant's female sexual organ by his sexual organ. The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault of the child and, therefore, for continuous sexual assault of a young child. See Tex. Code Crim. Proc. Ann. art. 38.07 (West 2005); Lee v. State, 186 S.W.3d 649, 655 (Tex. App.-Dallas 2006, pet. ref'd).⁹ X.F. did not provide details about each of the times Garcia allegedly sexually abused her or the specific dates the alleged sexual abuse occurred. However, in the forensic interview shown to the jury and in her trial testimony, X.F. described the sexual act of Garcia "putting his thing" or his "private part" in X.F.'s "thing" or "private part," with the private parts identified by X.F. on drawings. Further, X.F. stated in the forensic interview and testified at trial that the sexual abuse occurred "a lot" between January or February 2008 and July 2008. The jury also heard evidence regarding Garcia's written statement referring to "that one time" when X.F. "climbed on top of [Garcia] to have relations." While Garcia asserts some of X.F.'s testimony was conflicting and not credible, it was the jury's role to resolve any conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Gear v. State, No. PD-1069-10, 2011 WL 2409267, at *3 (Tex. Crim. App. June 15, 2011) (quoting Jackson, 443 U.S. at 319). We conclude the jury could have rationally found that Garcia committed more than one act of sexual abuse against X.F. during a period of thirty days or more by "the contact and penetration of the [X.F.'s] female sexual organ by [Garcia's] sexual organ." We overrule Garcia's third issue.

Conclusion

We affirm the trial court's judgment.

1 At the time of trial, Lidia lived in California and did not testify.

2 S.B. knew of a Spanish television show X.F. watched in their bedroom that S.B. believed came on television at 7:00 p.m. Mondays through Thursdays. Fatimo Quiroz, a marketing assistant for the Spanish television station, testified at trial. Quiroz testified that the television program X.F. stated was airing on Thursday, July 31, 2008 at the time of the last sexual contact with Garcia did not air on that date. Quiroz testified that the time the program would have aired in advance of X.F.'s August 8, 2008 forensic interview was July 5, 2008.

3 S.G., a first grader in 2008, testified that he never saw Garcia with his clothes off around X.F., touch X.F. in a bad way, put his hands on X.F.'s chest, put his hands in X.F.'s private parts, or get on the floor of the bedroom and lay on top of X.F. S.G. testified that when he was sleeping, he did not know what other people were doing. Venancio testified that during the time Garcia was living at S.B.'s house, Venancio never witnessed anything in the nature of the allegations that X.F. made or that caused Venancio to think Garcia was having a sexual relationship with X.F.

4 See Miranda v. Arizona, 384 U.S. 436, 478-79 (1966) (requirement that police advise person of right to remain silent and right to legal counsel prior to questioning applies if the person has been taken into custody or otherwise deprived of his freedom of action in any significant way).

5 See also State v. Espinoza, No. 05-09-01260-CR, 2010 WL 2598982, at *9 (Tex. App.-Dallas June 30, 2010, pet. ref'd) (not designated for publication).

6 See also Sandoval v. State, No. 05-10-00901-CR, 2011 WL 2207102, at *1 (Tex. App.-Dallas June 8, 2011, no pet. h.) (mem. op., not designated for publication); Henshaw v. State, No. 05-10-00104-CR, 2011 WL 1459771, at *1 (Tex. App.-Dallas Apr. 18, 2011, pet. filed) (mem. op., not designated for publication); Espinoza, 2010 WL 2598982, at *6.

7 See also Sandoval, 2011 WL 2207102, at *1; Henshaw, 2011 WL 1459771, at *1; Espinoza, 2010 WL 2598982, at *5.

8 As relevant to this case, a person commits aggravated sexual assault by (1) intentionally or knowingly, (2) causing the penetration of the sexual organ of the child by any means, and (3) the child was younger than fourteen years of age. Id. § 22.021(a)(1)(B)(i), (a)(2)(B).

9 See also Sanchez v. State, No. 05-10-00292-CR, 2011 WL 2240910, at *6 (Tex. App.-Dallas June 9, 2011, no pet. h.) (not designated for publication).