Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 292nd Judicial District Court Dallas County,
Texas, Trial Court Cause Nos. F-1731348-V & F-1731349-V
Justices Bridges, Brown, and Nowell.
Serrato appeals his convictions for indecency with a child by
contact and aggravated sexual assault of a child. The two
complainants, JA and DA, are brothers. Appellant was tried
jointly for the offenses, and a jury found him guilty.
Serrato raises three issues in the indecency case and two in
the aggravated sexual assault case. He challenges the
sufficiency of the evidence to prove indecency and complains
of the admission of hearsay statements and jury charge error.
We affirm both judgments.
indictment charging appellant with indecency with a child
alleged that on or about May 1, 2015, appellant unlawfully,
with intent to arouse and gratify his sexual desire, engaged
in sexual contact with JA, a child younger than seventeen
years and not appellant's spouse, by contact between
appellant's hand and JA's genitals. The indictment
charging appellant with aggravated sexual assault of a child
alleged that on or about February 1, 2016, appellant
intentionally and knowingly caused the contact and
penetration of DA's anus by appellant's sexual organ.
The indictment further alleged DA was not appellant's
spouse and was younger than fourteen.
case, the State gave pretrial notice of possible outcry
witnesses. At the hearing to determine the proper outcry
witness, the prosecutor informed the judge that the State was
not offering the outcry of JA, only the outcry of DA. The
trial court determined that the forensic interviewer, Megan
Peterson, was the outcry witness in the case involving DA.
time of trial, JA was eight years' old and DA was nine.
Appellant was the boyfriend of the boys' uncle Carlos and
was known as "Freddie." The State presented
evidence that appellant and Carlos lived in the same house
with JA and DA and several other family members from early
2013 to early 2016 and that the sexual abuse occurred during
that time. The allegations came to light in July 2017. Both
boys testified that appellant engaged in sexual conduct with
them. Appellant testified and denied the allegations. The
jury found appellant guilty as charged in each case and
assessed his punishment at fifteen years' confinement for
indecency with a child and thirty years' confinement for
aggravated sexual assault of child.
of the Indecency with a Child Conviction
first issue in the indecency case, appellant contends the
evidence is insufficient to support the jury's verdict.
He argues the evidence creates only a "suspicion of
reviewing appellant's complaint about the sufficiency of
the evidence, we consider all of the evidence in the light
most favorable to the verdict to determine whether, based on
that evidence and the reasonable inferences therefrom, a
factfinder was rationally justified in finding guilt beyond a
reasonable doubt. Temple v. State, 390 S.W.3d 341,
360 (Tex. Crim. App. 2013); see Jackson v. Virginia,
443 U.S. 307, 318-19 (1979). The factfinder is the sole judge
of the credibility of the witnesses and the weight to be
given their testimony. Temple, 390 S.W.3d at 360. The
testimony of a child victim alone is sufficient to support a
conviction for indecency with a child. See Tex. Code
Crim. Proc. Ann. art. 38.07; Lee v. State, 186
S.W.3d 649, 655 (Tex. App.-Dallas 2006, pet. ref'd).
testified that he used to live in Grand Prairie with his
grandparents, parents, siblings, and Carlos and Freddie. One
time, JA was sleeping on a couch at home. He woke up and saw
Freddie right next to him. Freddie touched JA's side with
his hand. Then Freddie touched JA's private part under
JA's underwear. On a picture of a boy's body, JA
identified the "private part" as the part one uses
"to pee." On cross-examination, JA stated that he
thinks he was four when the offense occurred.
complaint about the sufficiency of the evidence amounts to a
challenge to JA's credibility. He suggests the evidence
is insufficient because there was no outcry witness in the
case involving JA and because JA was not asked to identify
the date of the offense. The court of criminal appeals has
stated, "Especially where young children are involved,
we have cautioned that courts cannot impose unrealistic
expectations regarding proof of when an offense actually
occurred." Dixon v. State, 201 S.W.3d 731, 736
(Tex. Crim. App. 2006). It is well settled that the "on
or about" language in an indictment allows the State to
prove a date other than the one alleged as long as the date
is anterior to the presentment of the indictment and within
the statutory limitations period. Sledge v. State,
953 S.W.2d 253, 256 (Tex. Crim. App. 1997); see Tex.
Code Crim. Proc. Ann. art. 21.02. There is no statutory
limitations period for indecency with a child. Tex. Code
Crim. Proc. Ann. art. 12.01. The State's evidence showed
the offense occurred prior to presentment of the indictment
in October 2017. JA's testimony alone was legally
sufficient to support appellant's conviction for
indecency with a child by contact. We will not disturb the
jury's determination of the credibility of the witnesses.
We overrule appellant's first issue in the indecency
second issue, appellant contends the trial court erred in
admitting testimony from Daniel A., JA and DA's paternal
uncle, over appellant's hearsay objection. We conclude