Eric Mosqueda v. State
10-15-00168-CR
| Tex. App. | Aug 17, 2016Background
- Appellant Eric Mosqueda was convicted of 1 count of aggravated sexual assault of a child, 2 counts of sexual assault of a child, and 3 counts of indecency with a child by contact, based on incidents occurring in 2006 and 2013 involving his wife's daughter.
- Victim testified to two separate 2006 incidents (touching and kissing, sexual contact escalating to oral contact) and two 2013 incidents (digital penetration and sexual touching while sharing bed).
- Defense highlighted: delayed outcry for the 2006 events, prior inconsistent statements, a 2005 recanted outcry against the victim’s adoptive father, a 2006 psychological evaluation suggesting deceitful tendencies, and alleged inconsistencies in 2013 statements.
- State relied principally on the victim’s live testimony; Texas law allows convictions for child sexual offenses to be supported by the victim’s uncorroborated testimony.
- Mosqueda raised multiple appellate complaints: legal insufficiency (including “equipoise”), lack of corroboration for 2006 counts, a material variance between indictment and proof on one indecency count, jury-charge unanimity error for two indecency counts, and exclusion of mirror-writing evidence.
- The Tenth Court of Appeals affirmed, finding the evidence legally sufficient, no material variance, no reversible unanimity error, and no harmful exclusion of evidence.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Mosqueda) | Held |
|---|---|---|---|
| Sufficiency of evidence for all counts | Victim’s testimony (even uncorroborated) is sufficient; view evidence in light most favorable to verdict | Evidence was in equipoise due to recanted outcry, delayed reporting, psychologist’s notes, and inconsistencies | Affirmed: evidence sufficient under Jackson standard; jury resolved credibility |
| Sufficiency for 2006 counts / lack of corroboration | No corroboration required for child-sexual-offense convictions; victim’s testimony suffices | 2006 incidents lacked corroboration and delayed outcry undermines reliability | Affirmed: uncorroborated testimony may support convictions (art. 38.07 authority) |
| Variance as to indecency count IV (touching method) | Counts alleged separate touching events; indictment need not specify means of touching | Count VI alleged touching with hand; count IV ambiguous—State proved only hand touching twice, creating variance | Affirmed: not a material variance; indictment and proof adequately informed defense |
| Jury unanimity instruction (counts IV & VI) | Charge informed jurors they must unanimously agree on which incident establishes guilt | Instruction insufficiently detailed to ensure unanimity between "touch" vs "touch with hand" allegations | Affirmed: any error was not preserved and not egregiously harmful under Almanza |
| Exclusion of mirror-writing evidence | N/A | Writings on victim’s mirror were admissible to show state of mind/motive or non-hearsay; exclusion harmed defense | Affirmed: trial court’s exclusion (if erroneous) was harmless—no offer of proof on timing/meaning; no substantial right affected |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (established the constitutional standard for reviewing legal sufficiency of the evidence)
- Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App.) (circumstantial evidence treated as probative as direct evidence)
- Lucio v. State, 351 S.W.3d 878 (Tex. Crim. App.) (review of “all the evidence” includes properly and improperly admitted evidence)
- Conner v. State, 67 S.W.3d 192 (Tex. Crim. App.) (same – inclusion of improperly admitted evidence in sufficiency review)
- Chambers v. State, 805 S.W.2d 459 (Tex. Crim. App.) (factfinder entitled to judge witness credibility)
- Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App.) (variance/materiality test for indictment vs. proof)
- Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App.) (jury unanimity requirement when multiple incidents are alleged)
- Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App.) (abolition of factual-sufficiency review in criminal cases)
- Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App.) (Almanza harm analysis framework for jury-charge error)
- Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App.) (standard for reversible jury-charge error and harm analysis)