Stefan Rainer Forkert v. State

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Opinion filed October 4, 2018




                                       In The


        Eleventh Court of Appeals
                                    __________

                                No. 11-16-00279-CR
                                    __________

                 STEFAN RAINER FORKERT, Appellant
                               V.
                   THE STATE OF TEXAS, Appellee

                     On Appeal from the 238th District Court
                            Midland County, Texas
                        Trial Court Cause No. CR47750

                      MEMORANDUM OPINION
      Appellant, Stefan Rainer Forkert, appeals his conviction for attempted
aggravated sexual assault. Appellant argues in four issues that the trial court erred
(1) by allowing the adult victim to testify by two-way closed-circuit television,
(2) by allowing an outcry witness to testify, (3) by allowing a witness to give hearsay
testimony that did not fall within the medical-diagnosis-or-treatment exception to
the hearsay rule, and (4) in convicting Appellant of attempted aggravated sexual
assault when the evidence was insufficient. We affirm.
                                      I. Background Facts
       Appellant was charged by information with two counts of attempted
aggravated sexual assault. 1 The jury found Appellant guilty as to Count I and not
guilty as to Count II. The jury assessed punishment at confinement for twenty years
in the Institutional Division of the Texas Department of Criminal Justice and a fine
of $10,000.
       M.R. was a 21-year-old woman, diagnosed with ADHD and Asperger’s
syndrome with borderline intellectual functioning, when she was allegedly assaulted
by her stepfather. M.R. had graduated high school through a special education
program, and although unemployed at time of trial, she had previously worked part-
time at a hospital washing dishes. On December 11, 2015, M.R. told her physician,
Dr. Ikemefuna Okwuwa, that Appellant was having her expose her breasts and her
privates and that “sometimes [Papa] wants to take it too far.” Dr. Okwuwa reported
the incident to the authorities, and Officer Brianna Rodriguez interviewed M.R. and
her mother, Mrs. Forkert.
       Detective Rosie Rodriguez became involved in the case around December 22,
2015. Mrs. Forkert gave Detective Rodriguez a letter written by Appellant to M.R.,
which stated in part: “I know you did not lie . . . . Please stick to the story that you
told a lie. I promise not to ever do it again.”
       After speaking to Mrs. Forkert, Detective Rodriguez directed M.R. to the
Children’s Advocacy Center for an interview because she perceived M.R. to
have the capacity of a seven- to ten-year-old. Detective Rodriguez monitored
M.R.’s interview by “video.” Afterwards, she directed M.R. to a hospital for an


       1
        We note that the record reflects that Appellant had been charged by indictment with a greater
offense and that, when the charges were refiled by information as lesser included offenses of those
contained in the indictment, Appellant waived the necessary rights in open court.



                                                 2
examination by a sexual assault nurse examiner (SANE). Cori Armstead, a SANE,
examined M.R. During the exam, M.R. stated that Appellant had touched her on her
private parts under her clothes, and M.R. pointed to the area on her body. M.R.
stated that she would not let Appellant put his private part in her private part. While
the SANE was examining M.R., Detective Rodriguez interviewed Appellant at the
Midland Police Department. Appellant admitted to touching M.R. in her vaginal
area. The interview was recorded and played for the jury at trial.
      At a pretrial hearing, the prosecutor sought to have M.R. testify by closed-
circuit television (CCTV). Because of M.R.’s intellectual impairment, complicated
by ADHD and Asperger’s syndrome, M.R. had a fear of strangers, crowds, and
Appellant. When M.R. was stressed, she spoke like a baby and acted like a seven-
year-old. Mrs. Forkert testified that M.R. would be less reliable if she had to testify
in the courtroom due to her fear of crowds and Appellant. The trial court approved
the use of CCTV over Appellant’s objection.
      At trial, M.R. testified that, when her mother was away, Appellant would
touch her on her “bathroom place,” both over and under her clothes. M.R. also
testified that, once or twice, Appellant took off her shirt and her pants and removed
his pajama pants, remaining in his underwear. Appellant also attempted to put his
“bathroom place” in her “bathroom place.”
                              II. Testimony Via CCTV
      In his first issue, Appellant contends that the trial court abused its discretion
in allowing M.R. to testify via CCTV. Specifically, Appellant complains that his
confrontation rights under the Sixth Amendment and Article I, section 10 of the
Texas Constitution were violated. The State responds that the trial court did not
abuse its discretion because M.R. could not testify in court reliably because of her
medical condition and fear of strangers, crowds, and Appellant.


                                          3
      A. Pretrial hearing on CCTV
       M.R.’s mother testified at the pretrial hearing that M.R. was diagnosed with
ADHD and Asperger’s syndrome. Socially, M.R., who was twenty-two years old at
the time of trial, performed at a much younger level and had difficulty in groups.
Mrs. Forkert gave the example that, although M.R. accompanies her to church often,
M.R. is terrified and hides behind her. M.R. considers more than three people a
crowd and regresses when she encounters a crowd. When M.R. becomes stressed,
she seeks comfort from her mother by hiding behind her or physically next to her or
she may grab a stuffed animal. When M.R. has spoken to her therapist or attorneys
about Appellant’s actions, she regresses to the level of a seven-year-old. When very
scared and stressed, M.R. has refused to respond to people. Mrs. Forkert questioned
the reliability of M.R.’s testimony if she were to testify in open court rather than
CCTV. Dr. Shailesh Jain, M.R.’s psychiatrist, provided the court with a letter, which
was admitted into evidence, confirming M.R.’s diagnosis. In the letter, Dr. Jain
stated that M.R. “has been diagnosed with Asperger Syndrome and ADHD with
borderline intellectual functioning. I am really concerned about her ability to testify
in court and the additional stress that it will bring to her.” On cross-examination,
Mrs. Forkert testified that M.R. goes nowhere by herself other than to work by
paratransit.
      Kristin Dennis, M.R.’s therapist, testified that she and M.R. had had
approximately twenty meetings. She testified that M.R.’s ability to function was
directly related to her stress level and how comfortable she was with her
surroundings. If there were many people around, she clung to her mother and
behaved like a seven- or eight-year-old. Dennis opined that M.R. would be better
able to testify through CCTV as it would lower her stress level.




                                          4
        B. The Right of Confrontation
        The Sixth Amendment provides, in relevant part: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. CONST. amend. VI. “The central concern of the Confrontation
Clause is to ensure the reliability of the evidence against a criminal defendant by
subjecting it to rigorous testing in the context of an adversary proceeding before the
trier of fact.” Maryland v. Craig,
497 U.S. 836, 845
(1990). In Craig, CCTV was
used to present a child’s testimony.
Id.
at 842–43. The child victim testified under
oath, was subject to full contemporaneous cross-examination, and was observed by
the judge, jury, and defendant during that testimony.
Id. at 857
. The Court held that
the “Confrontation Clause does not prohibit use of a procedure that, despite the
absence of face-to-face confrontation, ensures the reliability of the evidence by
subjecting it to rigorous adversarial testing and thereby preserves the essence of
effective confrontation.”
Id.
The right of confrontation was not diminished because
every other aspect of the right to confrontation except face-to-face confrontation in
the courtroom was given full force. 2
        In Gonzales v. State,
818 S.W.2d 756, 764
(Tex. Crim. App. 1991), the Court
of Criminal Appeals upheld the use of CCTV to obtain the testimony of a child
witness after determining that the system was necessary to protect the child’s well-
being and that she would suffer significant trauma if forced to testify in the
courtroom. Accord Marx v. State,
987 S.W.2d 577, 580
(Tex. Crim. App. 1999)
(holding no Sixth Amendment violation when trial court determined that procedure
was necessary to prevent significant emotional trauma to the child witness).

        2
         Elements of the confrontation right include the following: (1) the giving of testimony under oath,
(2) the opportunity for cross-examination, (3) the ability of the factfinder to observe demeanor evidence,
and (4) the reduced risk that a witness will wrongfully implicate an innocent defendant when testifying in
his presence. See Craig, 497 U.S. at 845–46.



                                                    5
      While a face-to-face confrontation is preferred, it is “a preference that ‘must
occasionally give way to considerations of public policy and the necessities of the
case[.]” Craig,
497 U.S. at 849
(quoting Mattox v. United States,
156 U.S. 237, 243
,
(1895)). The ability to present witness testimony through CCTV or other digital
means has been extended to pregnant women and other fragile or absent witnesses.
See Molina v. State, No. 01-17-00075-CR,
2018 WL 3150419
, at *3 (Tex. App.
Houston [1st Dist.] June 28, 2018, pet. ref’d) (mem. op.) (electronic testimony of
pregnant witness did not violate defendant’s right to confrontation); Montague v.
State, No. 03-14-00266-CR,
2016 WL 112378
, at *5 (Tex. App.—Austin, Jan. 6,
2016, pet. ref’d) (pregnant witness testified via closed-circuit television) (mem. op.,
not designated for publication); Rivera v. State,
381 S.W. 3d 710, 712
(Tex. App.—
Beaumont 2012, pet. ref’d) (witness on active duty in Iraq testified by video
conference); Stevens v. State,
234 S.W.3d 748, 782
(Tex. App.—Fort Worth 2007,
no pet.) (elderly, out-of-town witness testified via closed-circuit television).
      C. Analysis
      Although M.R. was twenty-two years old at the time of trial, her borderline
intellectual functioning combined with Asperger’s syndrome and ADHD rendered
her childlike under stressful situations. Testimony from her mother and therapist
revealed the potential for M.R. to suffer significant emotional trauma if she were
forced to testify in a crowded courtroom. In addition, Mrs. Forkert and Dennis
testified that the reliability of M.R.’s testimony would be diminished by the stress
associated with the live courtroom. The CCTV procedure used to present M.R.’s
testimony preserved the elements of in-court testimony. See Craig, 497 U.S. at 845–
46. M.R. was sworn in and testified under oath. The courtroom was set up so that
M.R. could see the prosecutor and Appellant’s counsel as well as Appellant.
Counsel, Appellant, and the jury could observe M.R. while she testified, including


                                           6
during contemporaneous cross-examination. The evidence supports the trial court’s
conclusion that permitting M.R. to testify via CCTV was necessary to protect her
welfare, that she would be traumatized by a crowded courtroom and Appellant’s
presence, and that the trauma would be “more than de minimis.” See Walker v. State,
461 S.W.3d 599
, 605–06 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (mother’s
testimony regarding daughters’ fears of the defendant was sufficient to demonstrate
that use of CCTV was necessary); see also Craig, 497 U.S. at 855–56; Gonzales,
818 S.W.2d at 762
.
         Appellant complains that the trial court did not make formal findings of fact
that (1) the use of the closed-circuit television system is necessary to protect the
welfare of the particular child witness, (2) the child witness would be traumatized
by the presence of the defendant, and (3) the emotional distress suffered by the child
witness in the presence of the defendant is more than mere nervousness or
excitement or some reluctance to testify.                      See Craig, 497 U.S. at 855–56;
Hightower v. State,
822 S.W.2d 48, 51
(Tex. Crim. App. 1991). The trial court
conducted a hearing on the necessity for using CCTV, and by permitting its use, the
court implicitly made the constitutionally required findings. Barnes v. State,
165
S.W.3d 75, 84
(Tex. App.—Austin 2005, no pet.).3 We overrule Appellant’s first
issue.
                                III. Testimony from Outcry Witness
         Appellant asserts in his second issue that the trial court abused its
discretion when it permitted Dr. Okwuwa to testify as an outcry witness because
(1) M.R.’s outcry was not specific enough to meet the hearsay requirements set forth
in Article 38.072 of the Texas Code of Criminal Procedure and (2) the evidence


         3
          Appellant did not request formal findings of fact on the issue.



                                                      7
failed to establish that M.R. is a person with a disability under Article 38.072. See
TEX. CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2017). The State responds
that Appellant did not preserve his objection to the outcry’s specificity and that the
evidence established that M.R. was a disabled person.
      A. Standard of Review
      We review a trial court’s evidentiary rulings for an abuse of discretion.
Gonzalez v. State,
544 S.W.3d 363, 370
(Tex. Crim. App. 2018); Martinez v. State,
327 S.W.3d 727, 736
(Tex. Crim. App. 2010). A trial court abuses its discretion
when its ruling falls outside the zone of reasonable disagreement. Gonzalez,
544
S.W.3d at 370
. Under the abuse-of-discretion standard, we must uphold the trial
court’s ruling if the record reasonably supports it and it is correct under any legal
theory applicable to the case. Neale v. State,
525 S.W.3d 800, 809
(Tex. App.—
Houston [14th Dist.] 2017, no pet.). We may not substitute our judgment for that of
the trial court. Moses v. State,
105 S.W.3d 622, 627
(Tex. Crim. App. 2003).
      B. Outcry Testimony
      When a defendant is charged with certain offenses against a disabled
individual, Article 38.072 allows the complainant’s out-of-court statement into
evidence so long as that statement is a description of the offense and is offered into
evidence by the first adult the complainant told of the offense. CRIM. PROC.
art. 38.072. A complainant’s out-of-court statement is commonly referred to as an
“outcry,” and an adult who testifies about an outcry is known as an “outcry witness.”
Sanchez v. State,
354 S.W.3d 476, 484
(Tex. Crim. App. 2011). While such
statements are generally hearsay, the Texas Code of Criminal Procedure provides a
statutory exception to the hearsay rules in prosecuting certain offenses, including
attempted aggravated sexual assault. CRIM. PROC. art. 38.072, § 1.




                                          8
      C. Definitiveness of Outcry Statement and Waiver
      The proper outcry witness under Article 38.072 is the first adult to whom the
disabled person or child makes a statement that describes the alleged offense in some
discernable manner. Garcia v. State,
792 S.W.2d 88, 91
(Tex. Crim. App. 1990).
The statement must give more than “a general allusion that something in the area of
child abuse was going on.”
Id.
Appellant contends that M.R.’s statements to
Dr. Okwuwa were not specific enough to qualify under Article 38.072. The State
asserts that Appellant did not preserve this complaint for appellate review.
      The trial court held a hearing on the reliability of the statements. After
Dr. Okwuwa’s voir dire, Appellant’s counsel objected to the use of Dr. Okwuwa as
an outcry witness solely on the basis that M.R. was not disabled under the terms of
Article 38.072. No objection was made on the basis of specificity. The objection
made at trial must comport with the error complained of on appeal. Quintero v.
State, No. 04-13-00596-CR,
2015 WL 1914595
, at *3 (Tex. App.—San Antonio
Apr. 15, 2015, pet. ref’d) (mem. op., not designated for publication) (holding failure
to object to lack of specificity waived complaint on appeal); see Wilson v. State,
71
S.W.3d 346, 349
(Tex. Crim. App. 2002); see also TEX. R. APP. P. 33.1 (error must
be preserved by making complaint to trial court stating specific grounds for
complaint). We hold that Appellant failed to preserve his complaint regarding
specificity of the outcry.
      D. Evidence of M.R.’s Disability Under Article 38.072
      Article 38.072 permits the admission of a hearsay statement about an offense
made by a person with a disability to the first person eighteen years of age or older.
The statute defines a “person with a disability” as “a person 13 years of age or older
who because of age or physical or mental disease, disability, or injury is substantially




                                           9
unable to protect the person’s self from harm or to provide food, shelter, or medical
care for the person’s self.” CRIM. PROC. art. 38.072, § 3.
      Mrs. Forkert testified that M.R. had an intellectual impairment as well as
Asperger’s syndrome and ADHD. M.R. processes things at the level of a child
between the ages of seven and fourteen, depending on the level of stress. M.R. had
been in special education classes throughout her education. Although she had a job
washing dishes at a local hospital and used paratransit, transportation for the
disabled, to go to her job, M.R. went nowhere else without her mother.
      M.R.’s therapist, Dennis, testified that she had approximately twenty therapy
sessions with M.R. and that M.R. exhibited a variety of behaviors. M.R. sometimes
behaved on a six- to eight-year-old level and other times functioned at about a
fourteen- or fifteen-year-old level. M.R. initially came to sessions accompanied by
her mother, and M.R. would often cling to her mother. Dennis observed M.R.’s
discomfort and regression around strangers.           Dr. Okwuwa, M.R.’s physician,
testified that he did not believe that M.R. was capable of caring for herself, seeking
medical care for herself, or things of that nature.
      The trial court withheld its ruling on the outcry witness until after M.R.
testified at trial. After her testimony, the trial court found that M.R.’s statement to
Dr. Okwuwa “is reliable based upon the time, content and circumstances of that
statement, and that [M.R.] is a child with disabilities and that she has testified and
has been available to testify in this trial.” Thereafter, Dr. Okwuwa testified.
      E. Analysis
      A trial court’s designation of an outcry witness will be upheld when supported
by the evidence. Garcia,
792 S.W.2d at 92
. The testimony of M.R., Mrs. Forkert,
Dennis, and Dr. Okwuwa support the trial court’s implicit finding that M.R. was
unable to care for herself and was disabled. The trial court’s exercise of its broad


                                           10
discretion in admitting Dr. Okwuwa as an outcry witness falls within the zone of
reasonable disagreement; we will not disturb the ruling absent a clear abuse of
discretion grounded in the record. See Garcia,
792 S.W.2d at 91
. We overrule
Appellant’s second issue.
                         IV. Admissibility of Testimony from SANE
       Appellant contends in his third issue that the trial court abused its discretion
by permitting the SANE to repeat statements made by M.R. during the exam because
those statements were hearsay.
        A. Background
        Armstead testified that she was a licensed nurse and a certified SANE.
Armstead performed a “chronic exam” of M.R. in December 2015.4 Armstead
described the process of a SANE exam beginning first with a history, which guides
her assessment and treatment of the patient. Next, she proceeds with a detailed
physical assessment, collecting evidence and taking pictures under certain
circumstances, followed by a general exam looking specifically at the anatomy.
        B. Standard of Review
        “A trial judge’s decision on the admissibility of evidence is reviewed under
an abuse of discretion standard and will not be reversed if it is within the zone of
reasonable disagreement.” Tillman v. State,
354 S.W.3d 425, 435
(Tex. Crim. App.
2011) (citing Davis v. State,
329 S.W.3d 798
, 813–14 (Tex. Crim. App. 2010);
Russeau v. State,
291 S.W.3d 426, 438
(Tex. Crim. App. 2009)).




        4
          An acute exam is conducted ninety-six hours or less from the time of the alleged assault, when
collection of forensic evidence is likely. A chronic exam is typically performed when the time from the
assault to the exam is greater than ninety-six hours.



                                                  11
      C. The Law
      Texas Rule of Evidence 803, relating to hearsay exceptions, provides in part:
            The following are not excluded by the rule against hearsay,
      regardless of whether the declarant is available as a witness:
            ....
            (4) Statement Made for Medical Diagnosis or Treatment.
      A statement that:
                   (A) is made for—and is reasonably pertinent to—
            medical diagnosis or treatment; and
                    (B) describes medical history; past or present
             symptoms or sensations; their inception; or their general
             cause.
TEX. R. EVID. 803(4).
      This exception assumes that the patient understands the importance of being
truthful with the medical personnel involved to receive an accurate diagnosis and
treatment. Bautista v. State,
189 S.W.3d 365
, 368–69 (Tex. App.—Fort Worth 2006,
pet. ref’d). “[I]t seems only natural to presume that adults, and even children of a
sufficient age or apparent maturity, will have an implicit awareness that the [medical
personnel]’s questions are designed to elicit accurate information and that veracity
will serve their best interest.” Taylor v. State,
268 S.W.3d 571, 589
(Tex. Crim. App.
2008). Although the proponent for introducing hearsay testimony generally has to
show that the declarant knew the statements were made for the purpose of diagnosis
and treatment, courts can infer from the record that the victim knew it was important
to tell a SANE the truth in order to obtain medical treatment or diagnosis. See
Fahrni v. State,
473 S.W.3d 486, 498
(Tex. App.—Texarkana 2015, pet. ref’d);
Franklin v. State,
459 S.W.3d 670, 677
(Tex. App.—Texarkana 2015, pet. ref’d);
Prieto v. State,
337 S.W.3d 918, 921
(Tex. App.—Amarillo 2011, pet. ref’d); see
also Thomas v. State, No. 03-11-00254-CR,
2013 WL 4516168
, at *3 (Tex. App.—
Austin Aug. 23, 2013, no pet.) (mem. op., not designated for publication);


                                         12
Duckworth v. State, No. 04-12-00077-CR,
2013 WL 3871058
, at *1–2 (Tex. App.—
San Antonio July 24, 2013, no pet.) (mem. op., not designated for publication);
Bahle v. State, No. 05-10-01057-CR,
2012 WL 1382568
, at *4 (Tex. App.—Dallas
Apr. 23, 2012, no pet.) (not designated for publication).
       D. Analysis
       Armstead testified that she took a history from M.R. and performed a detailed
physical and genital examination. Armstead testified the purpose of the history was
to learn why M.R. was having an exam, which would then guide the assessment and
treatment of M.R. There was testimony that M.R. had a mental acuity between that
of a seven-year-old and a fifteen-year-old, but M.R. testified that she knew the
difference between the truth and a lie. There was nothing in the record to indicate
that M.R. was unaware that the purpose of Armstead’s questions was to provide
medical treatment or diagnosis or that M.R. was unaware of the necessity to be
truthful. See Taylor,
268 S.W.3d at 589
. The record supports that M.R.’s history
was taken for the purpose of medical treatment or diagnosis, and the trial court did
not abuse its discretion in admitting Armstead’s testimony. We overrule Appellant’s
third issue.
                           V. Sufficiency of the Evidence
       Appellant argues in his fourth issue that the evidence was insufficient to
establish Appellant committed attempted aggravated sexual assault because (1) the
information failed to establish the manner and means by which Appellant was
attempting to commit the offense of aggravated sexual assault and (2) there was
insufficient evidence that M.R. was disabled as defined by the aggravated sexual
assault statute. The State responds that Appellant waived this issue regarding the
manner and means of committing aggravated sexual assault and that there was
sufficient evidence that M.R. was a disabled person under the terms of the statute.


                                         13
      A. Standard of Review
      The sufficiency of an information or indictment is a question of law and is
reviewed de novo. Smith v. State,
297 S.W.3d 260, 267
(Tex. Crim. App. 2009);
State v. Rodgers,
214 S.W.3d 644, 647
(Tex. App.—Eastland 2006, pet. ref’d). In
reviewing the sufficiency of the evidence to support a conviction, we view all of the
evidence in the light most favorable to the verdict to determine whether any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. Jackson v. Virginia,
443 U.S. 307, 319
(1979); Brooks v. State,
323 S.W.3d
893, 895
(Tex. Crim. App. 2010); Clayton v. State,
235 S.W.3d 772, 778
(Tex. Crim.
App. 2007). Such a standard not only gives the trier of fact the responsibility to
resolve conflicts in the testimony and to weigh the evidence accordingly, but it also
enables the factfinder to draw reasonable inferences from the facts. Jackson,
443
U.S. at 319
; Clayton,
235 S.W.3d at 778
. Indeed, the trier of fact is the sole judge
of the weight and credibility of the evidence. See Brown v. State,
270 S.W.3d 564,
568
(Tex. Crim. App. 2008).
      B. Background
      Appellant was charged by information with two counts of attempted
aggravated sexual assault. The jury returned a guilty verdict relating to Count I,
which provided as follows:
             [Appellant] on or about and between the 30th day of October and
      the 11th day of December, 2015, in the County of Midland and State of
      Texas and before the making and filing of this information did then and
      there with the specific intent to commit the offense of aggravated sexual
      assault, did then and there attempt to commit the offense of aggravated
      sexual assault against [M.R.] by committing an act, to wit: by then and
      there touching the genitals and sexual organ of the said [M.R.] with the
      finger and fingers of the said [Appellant], which said act and acts
      amounted to more than mere preparation that tended but failed to effect


                                         14
      the commission of the offense of sexual assault intended, and the
      [Appellant] knew the said [M.R.] is a disabled individual, and because
      of mental disease or defect at the time of the attempted sexual assault,
      was incapable of either appraising the nature of the act or of resisting
      it.
The jury charge tracked the information.
      C. Failure to Specify Manner and Means of Aggravated Sexual Assault
      Appellant contends that the information failed to establish with specificity the
manner and means by which Appellant was attempting to commit the offense of
aggravated sexual assault. Thus, “the Information fails to put the Appellant on notice
of the crime alleged. Without such notice, the Appellant is denied due process and
cannot adequately defend against the allegations . . . .” This is not a sufficiency of
the evidence issue but a notice issue.
      Appellant did not object to any defect as to form or substance of the
information before trial. Article 1.14 of the Texas Code of Criminal Procedure
provides in part:
             (b) If the defendant does not object to a defect, error, or
      irregularity of form or substance in an indictment or information before
      the date on which the trial on the merits commences, he waives and
      forfeits the right to object to the defect, error, or irregularity and he may
      not raise the objection on appeal or in any other postconviction
      proceeding.
Appellant never objected to the information. The proper test to determine if a
charging instrument charges “the commission of an offense” is whether the
allegations in it are clear enough that one can identify the offense alleged even if the
instrument fails to allege an element of the offense or contains additional information
indicating the person charged is innocent. See Teal v. State,
230 S.W.3d 172, 181
(Tex. Crim. App. 2007); Duron v. State,
956 S.W.2d 547
, 550–51 (Tex. Crim. App.



                                           15
1997). Appellant’s failure to make a timely objection before the date of trial waives
this objection on appeal. See Teal,
230 S.W.3d at 182
. We hold that Appellant failed
to preserve his objection to the specificity of the information.
      D. Sufficiency of the Evidence of Disability
      The term “disabled individual,” as used in the aggravated sexual assault
statute, “means a person older than 13 years of age who by reason of age or physical
or mental disease, defect, or injury is substantially unable to protect the person’s self
from harm or to provide food, shelter, or medical care for the person’s self.” TEX.
PENAL CODE ANN. § 22.021(b)(3) (West Supp. 2017). Appellant contends there was
insufficient evidence that M.R. was disabled and that, therefore, the evidence was
insufficient to support his conviction.
      In a similar case involving aggravated sexual assault of a disabled person, the
defendant argued that there was insufficient evidence of the victim’s mental
disability. Denstitt v. State, No. 02-14-00172-CR,
2015 WL 4043285
, at *2–3 (Tex.
App.—Fort Worth July 2, 2015, no pet.) (mem. op., not designated for publication).
In Denstitt, the evidence included testimony of a forensic interviewer who
interviewed the complainant and thought her cognitive level was that of a child
between six and ten years old based on her childlike terminology and her mental
processing in answering questions, among other things. Id. at *1. The interviewer
found the complainant to be dependent upon other people to make important
decisions. Id. The complainant’s uncle testified that she was disabled, unable to
live independently, and received disability payments from Social Security. Id. at *2.
The jury observed and listened to the complainant testify at trial. Id. The Fort Worth
Court of Appeals held that there was sufficient evidence from which the jury could
have found beyond a reasonable doubt that the complainant was a disabled person.
Id.


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         As discussed above, M.R.’s mother testified that M.R. had lived with her all
her life and that she had ADHD, Asperger’s syndrome, and a diminished intellectual
capacity. M.R.’s physician, Dr. Okwuwa, testified that M.R. could not care for
herself. The officer who responded to the initial police call testified that talking to
M.R. was like speaking to a seven- to ten-year-old child. M.R. was interviewed at
the Children’s Advocacy Center due to M.R.’s childlike level. The SANE testified
that M.R. had the development level of a seven- to eight-year-old child. The jury
was able to see and hear M.R. testify. Even though she was twenty-two years old,
M.R. needed dolls to testify about the actions of Appellant. Applying the appropriate
standard of review, we hold that there was sufficient evidence from which a jury
could have found beyond a reasonable doubt that M.R. was a disabled person as
contemplated by Section 22.021(b)(3). We overrule Appellant’s fourth issue.
                                            VI. Conclusion
         Having overruled Appellant’s four issues, we affirm the judgment of the trial
court.


October 4, 2018                                                    REBECCA SIMMONS
Do not publish. See TEX. R. APP. P. 47.2(b).                       FORMER JUSTICE
Panel consists of: Bailey, C.J.,
Simmons, F.J., 5 and Wright, S.C.J. 6
Willson, J., not participating.



         5
         Rebecca Simmons, Former Justice, Court of Appeals, 4th District of Texas at San Antonio, sitting
by assignment.
         6
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.



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