Flores, Adan, PD-1414-15

Background

Appellant Adan Flores was convicted by a jury of five counts of aggravated sexual assault of a child under 14 and one count of indecency with a child by contact; total sentence 66 years.
Alleged abuse occurred when the complainant (“Ana”) was about seven or eight (2003–2004); she made an outcry in 2012.
Veronica Valdez, a forensic interviewer, conducted and testified about a videotaped interview of Ana and was offered as the “outcry” witness. Defense argued the interview was leading and biased and that Ana had previously told other adults about abuse.
The State moved to amend the indictment (dates and, in some counts, means of assault); the trial court granted the amendment at a hearing the defense contends occurred ex parte.
Defense raised additional objections: denial of a copy of the videotape (Brady/Family Code protection), and alleged erroneous jury instruction expanding the timeframe for the State to prove dates/grade of offenses. The Fourth Court of Appeals affirmed; petitioner sought discretionary review.

Issues

Issue	Appellant's Argument	State's/Trial Court's Argument	Held
Qualification of Valdez as outcry witness / leading questions in interview	Valdez was biased, asked suggestive/leading questions, and thus her interview should be excluded; Ana had told others earlier so Valdez was not the first detailing the who/what/when/where	Valdez was the first adult to whom Ana described the details (how/when/where); leading questions used to clarify and develop testimony are within trial court discretion	Court held trial court did not abuse discretion: Valdez qualified as outcry witness and recorded interview complied with statutory procedures; leading questions did not require exclusion.
Access to videotape / Brady / record inclusion	Defense argued entitled to a copy of the videotape (Brady) and that the tape should be part of the record	Tape is confidential under Family Code and art. 39.15; defense had reasonable access and opportunity to view and cite the recording; statute prohibits copying absent special court order	Court held no Brady violation: defense had access and the statute forbids routine copying; no reversible error.
State’s amendment of indictment at alleged ex parte hearing	Granting amendment without defense counsel present denied due process under art. 28.10; defendant entitled to time to respond and hearing	State contends defendant received notice of the motion and court may grant amendments; amendments were not substantive changes creating new offenses and were harmless	Court held error on this theory was not preserved: defense did not timely object on the same ground at trial; appellate court affirmed.
Jury charge re: dates and grading of offenses (on-or-about / statute of limitations / degree)	Trial court lowered standard by allowing conviction for any time prior to presentment; evidence did not prove first-degree grading beyond a reasonable doubt given uncertainty about victim’s exact age/timing	Charge tracked amended indictment and explained on-or-about doctrine; victim’s testimony and corroboration supported offenses occurring before indictment and within limitations	Court held instruction proper; evidence legally sufficient to support convictions and dates were within allowable temporal range.

Key Cases Cited

Carmell v. Texas, 529 U.S. 513 (U.S. 2000) (due process limits on retroactive application of judicial changes in elements/definitions)
Holmes v. State, 323 S.W.3d 163 (Tex. Crim. App. 2010) (standards for outcry and related evidence issues)
Martinez v. State, 178 S.W.3d 806 (Tex. Crim. App. 2005) (outcry/child statement considerations)
Nino v. State, 223 S.W.3d 749 (Tex. App.—Houston [14th Dist.] 2007) (outcry and interview reliability issues)
Ochs v. Martinez, 789 S.W.2d 949 (Tex. App.—San Antonio 1990) (procedural concerns in child-interview contexts)
Sodipo v. State, 815 S.W.2d 551 (Tex. Crim. App. 1990) (due process and notice issues)
Vasquez v. State, 389 S.W.3d 361 (Tex. Crim. App. 2012) (trial court’s duty to prepare correct jury charge)