Marcus Flores Alcantar v. State
11-13-00270-CR
| Tex. App. | Aug 21, 2015Background
- Appellant Marcus Flores Alcantar was convicted by a jury of continuous sexual abuse of a child under Tex. Penal Code § 21.02 and sentenced to 25 years' confinement.
- Victim G.F., Appellant’s granddaughter, testified the abuse began in 5th grade in Abilene (Bridge Street and Abilene North Apartments), continued that summer, and persisted while she lived in South Dakota during 6th–7th grades.
- G.F. described multiple acts: kissing, touching of breasts (over and under clothing), digital penetration attempts, and being made to touch Appellant’s genitals.
- Forensic interviewer Melinda Beard testified G.F. initially disclosed fewer details (saying first incident was in 4th grade and mostly in South Dakota). Appellant’s recorded police interview admitted he touched G.F.’s breast and ‘‘rubbed’’ her in Abilene and South Dakota.
- The State presented a timeline tying G.F.’s grades/ages (born Dec. 1996) to the period after September 1, 2007; the jury was instructed that it need not unanimously agree on which specific acts occurred but had to unanimously find at least two acts during a 30+ day period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Sufficiency: period of 30+ days | State: testimony that abuse occurred over the "whole summer" in Texas and continued in SD shows a period ≥30 days | Alcantar: evidence does not show the abuse spanned a 30+ day period in Texas after statute effective date | Court: Affirmed — reasonable inference that "summer" (June–Aug.) is ≥30 days; evidence sufficient for 30+ day element |
| 2. Sufficiency: acts after Sep. 1, 2007 (statute effective date) | State: timeline + testimony place abuse after Sept. 1, 2007 (victim born Dec. 1996; abuses in 2008–2010) | Alcantar: evidence fails to show acts occurred on/after Sept. 1, 2007 | Court: Affirmed — jury could find beyond reasonable doubt acts occurred after statute effective date |
| 3. Exclusion of forensic-interview video (impeachment) | Alcantar: trial court erred by excluding the full video of Beard’s interview, which contained prior inconsistent statements to impeach G.F. | State: full video contains both admissible and inadmissible statements; defense failed to offer redacted portions | Court: Affirmed — trial court did not abuse discretion; appellant failed to segregate admissible portions |
| 4. Admission of Sutton’s hearsay testimony (call from G.F.) | Alcantar: Sutton’s testimony about G.F.’s phone call was hearsay | State: testimony was not offered for the truth but to show Sutton’s actions and that G.F. returned to Abilene | Court: Affirmed — not hearsay; alternatively, any error was harmless given G.F.’s own testimony corroborated the same facts |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for reviewing sufficiency of the evidence)
- Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App.) (applying Jackson standard in Texas sufficiency review)
- Kuhn v. State, 393 S.W.3d 519 (Tex. App.—Austin) (continuous-sexual-abuse statute not retroactive; effective date consideration)
- Willover v. State, 70 S.W.3d 841 (Tex. Crim. App.) (proffered evidence containing mixed admissible and inadmissible statements may be excluded if not segregated)
- Michell v. State, 381 S.W.3d 554 (Tex. App.—Eastland) (legislative purpose for continuous-sexual-abuse offense; addresses difficulty of date specificity in child-abuse cases)