                              NUMBER 13-09-00474-CR

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

JEFFERY JAY SOLIZ,                                                             Appellant,

                                              v.

THE STATE OF TEXAS,                                                             Appellee.


                    On appeal from the 117th District Court
                          of Nueces County, Texas.


                           MEMORANDUM OPINION
                Before Justices Yañez, Garza, and Benavides
                  Memorandum Opinion by Justice Garza
       Appellant, Jeffery Jay Soliz, was convicted by a Nueces County jury of aggravated

sexual assault, a first-degree felony, and was sentenced to thirty years’ imprisonment. See

TEX . PENAL CODE ANN . § 22.021 (Vernon Supp. 2010). By two issues on appeal, Soliz

contends that: (1) the jury should have been instructed to decide whether aggravated

sexual assault is a lesser included offense of the indicted offense; and (2) because the jury

was not so instructed, his conviction is void. We affirm.

                                      I. BACKGROUND

       On November 21, 2008, Soliz was indicted on one count of continuous sexual abuse

of a young child, a first-degree felony. See id. § 21.02 (Vernon Supp. 2010). The

indictment provided, in its entirety, as follows:
       IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:

              The duly organized Grand Jury of Nueces County, Texas, presents in
       the District Court of Nueces County, Texas, that JEFFERY JAY SOLIZ,
       defendant, did then and there in Nueces County, Texas, during a period that
       was 30 days or more in duration, to-wit: on or about NOVEMBER 1, 2007
       through MAY 3, 2008, when the defendant was 17 years of age or older,
       commit two or more acts of sexual abuse against [I.G.], a child younger than
       14 years of age[,] said acts of sexual abuse having been violations of one or
       more of the following penal laws including:

       Engaged in sexual contact with a child younger than 17 years of age and not
       the defendant’s spouse, namely, any touching by the defendant, including
       touching through clothing, of any part of the genitals of [I.G.] with the intent
       to arouse or gratify the defendant’s sexual desire,
                                         AND/OR
       Intentionally or knowingly contact or penetrate the genitals of [I.G.], a child
       younger than 14 years of age, by the defendant’s finger,
                                         AND/OR
       Intentionally or knowingly did then and there with the intent to arouse or
       gratify the defendant’s sexual desire, intentionally or knowingly engage in
       sexual contact with [I.G.] by toughing [sic] the genitals of [I.G.],
                                         AND/OR
       Intentionally or knowingly did then and there with the intent to arouse or
       gratify the defendant’s sexual desire, intentionally or knowingly engage in
       sexual contact with [I.G.] by causing [I.G.] to touch the sexual organ of the
       defendant,

       And each of the aforementioned acts of sexual abuse were committed on
       more than one occasion and, at the time of the commission of each of the
       acts of sexual abuse, the defendant was 17 years of age or older and [I.G.]
       was a child younger than 14 years of age and not the spouse of the
       defendant,

       against the peace and dignity of the State.

       After both parties rested their cases-in-chief at the guilt/innocence phase of trial, the

trial court determined as a matter of law that aggravated sexual assault and indecency with

a child are lesser included offenses of the greater offense of continuous sexual abuse of

a young child. See id. §§ 21.11 (Vernon Supp. 2010), 22.021; see also TEX . CODE CRIM .

PROC . ANN . arts. 37.08, 37.09 (Vernon 2006). The trial court also determined that there

was some evidence adduced that would permit the jury to rationally conclude that, if Soliz

is guilty, he is guilty only of aggravated sexual assault or indecency with a child.

Consequently, the court’s charge instructed the jury on all three offenses.1 See Hall v.


      1
          Soliz did not object to the jury charge at the trial court.

                                                         2
State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007). The jury found Soliz not guilty of

continuous sexual abuse of a child but guilty of aggravated sexual assault.2 The trial court

then sentenced Soliz to thirty years’ imprisonment. This appeal followed.

                                              II. DISCUSSION

        By his first issue on appeal, Soliz argues that the jury charge was erroneous

because it did not ask the jury to determine whether aggravated sexual assault is a lesser

included offense of continuous sexual abuse of a young child. According to Soliz,

subsection 21.02(e)(3) of the penal code provides that the jury, not the court, must make

that determination in order for a conviction to be obtained on a lesser included offense of
continuous sexual abuse of a young child. We disagree.

        When reviewing unobjected-to jury charge error, we first determine whether the

charge was erroneous. See Tolbert v. State, 306 S.W.3d 776, 779 (Tex. Crim. App. 2010).

If we determine that error occurred, we then consider whether the error caused egregious

harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).

Egregious harm will be found only if the error deprived the defendant of a fair and impartial

trial. Ex parte Smith, 309 S.W.3d 53, 63 (Tex. Crim. App. 2010) (citing Almanza, 686

S.W.2d at 171).

        In a prosecution for an offense with lesser included offenses, the jury may find the

defendant not guilty of the greater offense, but guilty of any lesser included offense. TEX .

CODE CRIM . PROC . ANN . art. 37.08. An offense is a lesser included offense if:

        (1)      it is established by proof of the same or less than all the facts required
                 to establish the commission of the offense charged;

        (2)      it differs from the offense charged only in the respect that a less
                 serious injury or risk of injury to the same person, property, or public
                 interest suffices to establish its commission;

        (3)      it differs from the offense charged only in the respect that a less
                 culpable mental state suffices to establish its commission; or



         2
           Having found Soliz guilty of aggravated sexual assault, the jury— in accordance with the instructions
given in the trial court’s charge— did not consider whether he was guilty of indecency with a child.

                                                       3
        (4)       it consists of an attempt to commit the offense charged or an
                  otherwise included offense.

Id. art. 37.09. In Hall v. State, the Texas Court of Criminal Appeals set forth the proper

procedure for determining whether to instruct the jury on a lesser included offense:

        The first step in the lesser-included-offense analysis, determining whether
        an offense is a lesser-included offense of the alleged offense, is a question
        of law. It does not depend on the evidence to be produced at the trial. It
        may be, and to provide notice to the defendant must be, capable of being
        performed before trial by comparing the elements of the offense as they are
        alleged in the indictment or information with the elements of the potential
        lesser-included offense.

                The evidence adduced at trial should remain an important part of the
        court’s decision whether to charge the jury on lesser-included offenses. The
        second step in the analysis should ask whether there is evidence that
        supports giving the instruction to the jury. “A defendant is entitled to an
        instruction on a lesser-included offense where the proof for the offense
        charged includes the proof necessary to establish the lesser-included
        offense and there is some evidence in the record that would permit a jury
        rationally to find that if the defendant is guilty, he is guilty only of the
        lesser-included offense.” In this step of the analysis, anything more than a
        scintilla of evidence may be sufficient to entitle a defendant to a lesser
        charge. In other words, the evidence must establish the lesser-included
        offense as “a valid, rational alternative to the charged offense.”

225 S.W.3d at 535-36 (footnotes and citations omitted). Under Hall, therefore, it is

exclusively the responsibility of the trial court to determine as a matter of law whether,

under code of criminal procedure article 37.09, an offense is properly considered a lesser

included offense of the indicted offense. See id.

        Soliz argues that, in his case, subsection 21.02(e) of the penal code explicitly

supercedes the court of criminal appeals’ opinion in Hall. Penal code section 21.02, which

defines the crime of continuous sexual abuse of a young child, was enacted in 2007 as

part of the Jessica Lunsford Act. Act of June 15, 2007, 80th Leg., R.S., ch. 593, § 1.17,

2007 TEX . SESS. LAW SERV. 1129-30 (codified at TEX . PENAL CODE ANN . § 21.02).3 The

        3
            The background and purpose of the legislation was set forth as follows:

        In 2005, 9-year-old Jessica Lunsford was abducted from her Florida hom e, sexually
        assaulted, and m urdered by a convicted sex offender. Since then, states have been rallying
        to enact stricter penalties for sex crim es com m itted against children. . . . [The Act provides]
        m ore stringent m easures to be used when dealing with persons who com m it sexually violent
        offenses against children.

House Com m . on Crim inal Jurisprudence, Bill Analysis, Tex. H.B. 8, 80th Leg., R.S. (2007).

                                                        4
statute provides that a person commits the offense of continuous sexual abuse of a young

child if,

        (1)      during a period that is 30 or more days in duration, the person
                 commits two or more acts of sexual abuse, regardless of whether the
                 acts of sexual abuse are committed against one or more victims; and

        (2)      at the time of the commission of each of the acts of sexual abuse, the
                 actor is 17 years of age or older and the victim is a child younger than
                 14 years of age.

TEX . PENAL CODE ANN . § 21.02(b). An “act of sexual abuse” includes indecency with a

child, if committed in a manner other than by touching the breast of a child, and aggravated

sexual assault. Id. § 21.02(c)(2), (c)(4). In order to convict a defendant of continuous
sexual abuse of a young child, the jury need not agree unanimously on which specific acts

of sexual abuse were committed by the defendant or the exact date when those acts were

committed. Id. § 21.02(d). The jury must merely agree unanimously that the defendant,

during a period that is thirty or more days in duration, committed two or more acts of sexual

abuse. Id.4

        Subsection (e) of the statute, which Soliz relies upon here, sets forth three situations

where a defendant charged with continuous sexual abuse of a young child may be

convicted of an individual offense of sexual abuse “in the same criminal action.” See id.

§ 21.02(e). A defendant may be so convicted only where the individual offense: (1) is

charged in the alternative; (2) occurred outside the period in which the continuous sexual

abuse of a young child was alleged to have been committed; or (3) “is considered by the

trier of fact to be a lesser included offense of” continuous sexual abuse of a young child.



         4
            W e note that several appellate courts, including this Court, have found that section 21.02 is
constitutional, despite the fact that the statute does not require the jury to agree unanim ously on which specific
acts of sexual abuse were com m itted in order to convict. See Reckert v. State, No. 13-09-00179-CR, 2010
Tex. App. LEXIS 7002, at *30-34 (Tex. App.–Corpus Christi Aug. 26, 2010, no pet. h.) (holding in part “that
the statute does not allow for a non-unanim ous verdict on an essential elem ent of the offense”); Render v.
State, No. 05-09-00528-CR, 2010 Tex. App. LEXIS 5820, at *18-27 (Tex. App.–Dallas July 23, 2010, pet. filed)
(concluding that section 21.02 does not violate due process in part because it “creates a single elem ent of a
‘series’ of sexual abuse” and “does not m ake each ‘violation’ (act of sexual abuse) a separate elem ent of the
offense”); see also Jacobsen v. State, No. 03-09-00479-CR, 2010 Tex. App. LEXIS 4394, at *13-14 (Tex.
App.–Austin June 8, 2010, no pet.) (m em . op., not designated for publication) (sam e, noting that the form s
of sexual abuse enum erated in the statute “are m orally equivalent” and “largely sim ilar conceptually”). Soliz
does not challenge the constitutionality of the statute on appeal, and we do not address it here.

                                                        5
Id. It is undisputed that conditions (1) and (2) do not apply here; therefore, Soliz may only

be convicted of aggravated sexual assault if that offense was “considered by the trier of

fact to be a lesser included offense of” continuous sexual abuse of a young child. See id.

         Soliz argues that the phrase “considered by the trier of fact” means that the trier of

fact, not the trial court, must make the preliminary legal determination of whether an

offense is, in fact, a lesser included offense of continuous sexual abuse of a child. Soliz

asserts that “if the jury is required ‘to consider’ then it must have an opportunity to exercise

its discretion on the issue.”

         When interpreting a statute, we work to effectuate the collective intent of the
legislature by discerning the objective meaning of the statute’s literal text at the time of its

enactment. Muniz v. State, 851 S.W.2d 238, 244 (Tex. Crim. App. 1993); see also TEX .

GOV’T CODE ANN . § 311.011 (Vernon 2005). We interpret a statute in accordance with the

plain meaning of its language unless the language is ambiguous or the plain meaning

leads to absurd results that the Legislature could not possibly have intended. Boykin v.

State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991); see Whitelaw v. State, 29 S.W.3d

129, 131 (Tex. Crim. App. 2000).

         The plain meaning of the word “consider” is “to think about carefully” or “to take into

account.” MERRIAM W EBSTER ’S COLLEGIATE DICTIONARY 246 (10th ed. 2006). There is

nothing in the plain language of the statute indicating that the Legislature intended to

supercede or abrogate Hall and its progeny by requiring—for this crime and for this crime

only—the trier of fact to decide whether an offense is a lesser included offense of the

charged offense. That is to say, under the statute’s plain meaning, there is no conflict

between it and the proper procedure as stated in Hall.5 Even if we were to find that the

statute plainly means that the jury must be permitted to make this determination, we


          5
            At oral argum ent, Soliz’s counsel suggested that penal code subsection 21.02(e)(3) conflicts with
code of crim inal procedure article 37.09 and that the form er, specific provision trum ps the latter, general
provision. See T EX . C OD E C R IM . P R O C . A N N . art. 37.09 (Vernon 2006); T EX . P EN AL C OD E A N N . § 21.02(e)(3)
(Vernon Supp. 2010). W e do not discern any conflict between the two statutes. W e note that, if the jury was
in fact required to decide whether an offense is a lesser included offense in this case, Soliz does not state how
the jury should have been instructed if article 37.09 does not apply.

                                                             6
believe this is a result that the Legislature could not have intended here. See Boykin, 818

S.W.2d at 785. As noted in Hall, the first-step question of whether a given offense is a

lesser included offense is a pure question of law, and must be capable of being answered

before trial. 225 S.W.3d at 535-36. It would be absurd to require a jury of lay people to

make this determination, which would be entirely independent of the evidence presented

at trial. Requiring the jury to determine whether the evidence supported the inclusion of

the lesser included offense in the jury charge—the second step elucidated in Hall—would

be even more absurd. We believe that the only reasonable interpretation of subsection

21.02(e)(3) is one under which the trial court is permitted to make determinations as to
pure matters of law.

          We overrule Soliz’s first issue. Having done so, we need not address his second

issue.6

                                               III. CONCLUSION

          The judgment of the trial court is affirmed.



                                                             ________________________
                                                             DORI CONTRERAS GARZA
                                                             Justice

Do not publish.
TEX . R. APP. P. 47.2(b)
Delivered and filed the
7th day of October, 2010.




          6
           Soliz did not assert, at trial or on appeal, that the trial court m ade incorrect legal conclusions when
it determ ined that aggravated sexual assault and indecency with a child are, as a m atter of law, lesser
included offenses of continuous sexual abuse of a young child. Instead, Soliz only contends that the trial court
was the wrong decisionmaker to have m ade that determ ination. Accordingly, we do not decide here whether
the trial court’s determ inations were correct. See T EX . R. A PP . P. 33; cf. Pena v. State, 191 S.W .3d 133, 136
(Tex. Crim . App. 2006) (noting that “[a]ppellate courts are free to review ‘unassigned error’— a claim that was
preserved in the trial below but was not raised on appeal” (em phasis added)).

                                                        7
