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Hinojosa v. State

Court of Appeals of Texas, First District

June 28, 2018

TEODORA HINOJOSA, Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from the 209th District Court Harris County, Texas Trial Court Case No. 1285136

          Panel consists of Higley, Massengale, and Lloyd Justices.

          OPINION

          MICHAEL MASSENGALE JUSTICE

         After a bench trial, appellant Teodora Hinojosa was found guilty of continuous sexual abuse of a child and sentenced to 45 years in prison. Tex. Penal Code § 21.02. The trial court later conducted a hearing to correct several errors in the judgment.

         On appeal, Hinojosa raises two issues. He argues that the court's failure to obtain a written waiver of his right to a jury trial was reversible constitutional error. He also challenges the sufficiency of the evidence to support his conviction because the indictment alleged that the offense occurred in Harris County, but some of the evidence necessary to support the judgment relates to incidents in Brazoria County.

         We affirm. There is sufficient evidence in the record of a knowing waiver of the right to a jury trial. Moreover, measured against a hypothetically correct jury charge, the evidence permitted a rational trier of fact to find Hinojosa guilty beyond a reasonable doubt. The variance between an allegation that the continuous sexual abuse of a child occurred in Harris County and proof that some of the elements occurred in Brazoria County is not material so as to render the evidence insufficient to support the conviction.

         Background

         For several years, appellant Teodora Hinojosa dated a woman who was the mother of six children, including the complainant, C.N. During that time Hinojosa often spent the night at the house where his girlfriend lived with her children. When C.N. was approximately 12 years old, she confided in a friend, her cousin, and finally a teacher, that Hinojosa had touched her in a sexually inappropriate way. After C.N. made the outcry to her teacher, her school alerted the Pasadena Police Department.

         Following an investigation led by Officer J. Stephens, a grand jury indicted Hinojosa for continuous sexual abuse of a minor. The indictment alleged that he sexually abused C.N. multiple times "in Harris County, Texas" over a period of almost seven months. At trial, C.N. testified that Hinojosa began abusing her when she was nine years old and continued until she was 12. She described numerous instances of abuse that occurred during that time, including attempted vaginal penetration, oral sex being performed on her, and other various sexual contacts. The sexual abuse occurred at C.N.'s home in Brazoria County and at Hinojosa's home in Harris County. C.N.'s family later moved to a home in Harris County, and Hinojosa sexually abused her several more times in that home. The incidents alleged in the indictment were when Hinojosa performed oral sex on C.N. at her home in Brazoria County, and an attempted vaginal penetration at his home in Harris County. Officer Stephens testified at trial that based on his investigation, he was able to identify Hinojosa's home in Harris County and C.N.'s residence in Harris County as two locations where incidents of sexual abuse occurred.

         The court found Hinojosa guilty and sentenced him to 45 years in prison. Over two weeks after the trial and sentencing, at Hinojosa's request, the court held a hearing to correct several errors in the judgment. During the hearing, the court crossed out an incorrect reference to a plea bargain and an incorrect statement indicating a waiver of the right to appeal. The judgment was corrected to show that Hinojosa had entered a plea of not guilty. During the course of the hearing, the trial judge acknowledged that a "normal" waiver of a jury trial was not signed, and he explained that a bench trial was requested. Defense counsel made no formal objection to the judgment's statement that Hinojosa "waived the right of trial by jury," and no evidence was offered to contradict the judgment by establishing the absence of a knowing and voluntary waiver of the right to a trial by jury.

         Analysis

         Hinojosa raises two issues on appeal. First, he asserts that his conviction should be overturned for constitutional error because the trial court failed to obtain a written waiver of the right to jury trial. Second, he asserts that the trial court should not have considered evidence of sexual abuse that occurred in Brazoria County because the indictment alleges the offense occurred "in Harris County." He argues that the evidence of sexual abuse that occurred in Harris County was insufficient to support his conviction for continuous sexual abuse of a child.

         I. Waiver of jury trial

         In his first issue, Hinojosa asserts that the trial court erred by failing to obtain a written waiver of a jury trial, and that ...


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