Reversed and Remanded and Opinion filed November 21, 2019.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00713-CR

                    RAFAEL PEREZ-MANCHA, Appellant

                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 177th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1496862

                                    OPINION

      A jury found appellant Rafael Perez-Mancha guilty of continuous sexual
abuse of a child. The jury assessed his punishment at confinement for twenty-five
years. From that conviction, appellant brings this appeal claiming the jury charge
was erroneous. Because we agree there is error in the charge that created such harm
that appellant was deprived of a fair and impartial trial, we reverse and remand.
                         I.     Was there error in the charge?

      Appellant’s only issue contends the jury charge was erroneous. Specifically,
appellant asserts the charge authorized the jury to convict him of the offense based
on acts of sexual abuse committed before September 1, 2007, the effective date of
the statute. The State concedes, and we agree, the charge was erroneous.

      The opening paragraph of the charge stated:

      The defendant, Rafael Perez-Mancha, stands charged by indictment
      with the offense of continuous sexual abuse of a child alleged to have
      been committed on or about the 19th day of October 2006 continuing
      through the 19th day of October, 2012, in Harris County, Texas….
      In order to find the defendant guilty of the offense of continuous sexual
      abuse of a child, you are not required to agree unanimously on which
      specific acts of sexual abuse were committed by the defendant or the
      exact date when those acts were committed….

Moreover, the application portion of the charge provided:

      Now, if you find from the evidence beyond a reasonable doubt that in
      Harris County, Texas, the defendant, Rafael Perez-Mancha, heretofore
      on or about the 19th day of October, 2006 continuing through the 19th
      day of October, 2012, did then and there unlawfully, during a period of
      time of thirty or more days in duration, commit at least two acts of
      sexual abuse against a child younger than fourteen years of age
      including an act constituting the offense of aggravated sexual assault of
      a child, committed against [the Complainant] on or about October 19,
      2006, and an act constituting the offense of aggravated sexual assault
      of a child, committed against [the Complainant] on or about October
      19, 2012….

The jury was instructed as follows in the abstract portion of the charge:

      You are further instructed that the State is not bound by the specific
      date which the offense, if any, is alleged in the indictment to have been
      committed, but that a conviction may be had upon proof beyond a
      reasonable doubt that the offense, if any, was committed at any time


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      within the period of limitations. There is no limitation period applicable
      to the offense of continuous sexual abuse of a child.
      You are further instructed that in deciding whether the defendant is
      guilty of the offense of continuous sexual abuse of a child, you are not
      to consider any conduct that occurred before October 19, 2006.
      The charge wholly failed to include an instruction that the jurors were
permitted to convict appellant of continuous sexual abuse of a child based only on
acts of sexual abuse that were committed on or after September 1, 2007. Because the
charge presented the jury with a “broader chronological perimeter” than the statute
permits, it was erroneous. See Martin v. State, 335 S.W.3d 867, 876 (Tex. App.—
Austin 2011, pet. ref’d); see also Gomez v. State, 459 S.W.3d 651, 660 (Tex. App.
—Tyler 2015, pet. ref’d), cert. denied¸136 S. Ct. 1201 (2016); Kuhn v. State, 393
S.W.3d 519, 524 (Tex. App.—Austin 2013, pet. ref’d).

                            II.    Was the error egregious?

      Appellant acknowledges the error was not objected to and therefore reversal
is required only if we find the error was so egregious and created such harm that he
was deprived of a fair and impartial trial. Barrios v. State, 283 S.W.3d 348, 350
(Tex. Crim. App. 2009). We review the degree of harm in light of the entire jury
charge, the state of the evidence, including the contested issues and weight of
probative evidence, counsels’ arguments, and any other relevant information
revealed by the trial record as a whole. See Taylor v. State, 332 S.W.3d 483, 489
(Tex. Crim. App. 2011); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1984); see also Villarreal v. State, 453 S.W.3d 429 (Tex. Crim. App. 2015).
Appellant must show he suffered actual rather than theoretical harm. Cosio v. State,
353 S.W.3d 766, 777 (Tex. Crim. App. 2011). For actual harm to be established, the
error must have affected the very basis of the case, deprived the defendant of a
valuable right, vitally affected a defensive theory, or made a case for conviction

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clearly and significantly more persuasive. Id; see also Taylor, 332 S.W.3d at 490.
“[W]e do not require direct evidence of harm to establish egregious harm.” Hutch v.
State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).

A.    The Entirety of the Jury Charge

      The jury in this case was never correctly instructed on the applicable law. The
opening paragraph of the charge, the application paragraph, and the abstract portion
of the charge erroneously instructed the jury that it could convict appellant for acts
committed prior to September 1, 2007. There was no limiting instruction that in
order to convict appellant of the charged offense, the jury could only consider acts
that occurred on or after September 1, 2007. The State agrees that this factor weighs
in favor of finding the error in the charge was egregious.

B.    Arguments of Counsel and Other Relevant Information

      During closing argument, the State emphasized the error in the charge:

      And we talked a lot about in voir dire, in jury selection, on or about a
      certain date; and I think the evidence pretty well established that this
      abuse took place from 2006 to 2009. In here, on what I believe is the
      fourth, maybe the fifth page, it says, “You are further instructed that the
      State is not bound by the specific date which the offense, if any, is
      alleged to have occurred in the indictment.”
      Because in this case there is no statute of limitations. So in this case if
      you believe that it took place after 2016 – November 19, 2006, excuse
      me, not ’16 – 2006, that would suffice for that element that it’s that
      date, the on or about date.

      The indictment alleged the first offense occurred “on or about” a date eleven
months before the statute went into effect. During voir dire, the State told the panel:

      But let’s go to on or about October 19th, 2006, continuing through
      October 19th, 2012. The reason it says on or about on there is because
      children aren’t good at remembering dates, especially when they’re 4
      years old, 5 years old, 6 years old. Right? So the legislature has made

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      it a carve-out in these type of cases that as long as the offense took place
      before the charge was filed, that counts as on or about.
      So if this charge was filed January 1, 2017, what I really have to prove
      to you is that it happened before that date. On or about is so wide that
      it is anything before this case was charged. . . . But, for example, if I
      proved to you, the jurors, that the defendant – and I’m not talking about
      Mr. Perez-Mancha in this case. I have to keep it hypothetical in jury
      selection – but in voir dire – in trial I prove to you that the defendant
      did commit aggravated sexual assault against a child and that was a year
      before October 19, 2006. Okay. That’s still on or about. Does
      everybody understand that?
Additionally, the following exchange occurred during voir dire:

            [VENIREPERSON]: Just theoretically speaking, so there’s
      evidence or testimony suggesting that the assault happened, let’s say,
      October, 2004. Would that mean you did not prove that element in the
      case?
             [STATE]: Right. And I appreciate that somebody else has that
      question, and that’s when on or about comes into play again. Right. As
      long as it’s before the charge was placed, so before he was charged with
      this offense, the on or about comes into play. So in this case, yes, I
      would have proved that if you believed that it took place in 2004. Does
      that make sense?
             [VENIREPERSON]: Yeah.

      The record does not reflect the jury was ever made aware that the statute was
not in effect before September 1, 2007. The State repeatedly misinformed the jury
that the dates the abuse occurred was irrelevant. But see Kuhn, 393 S.W.3d at 530-
31 (concluding the State’s closing argument weighed against a finding of egregious
harm where the State directed the jury’s attention to the effective date of the statute
and the application paragraph which contained a correct statement of the law
applicable to the case.); Gomez, 459 S.W.3d at 663 (same). The State agrees this
factor weighs in appellant’s favor. We conclude this factor weighs heavily in favor
of finding the error in the charge was egregious.

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C.     The State of the Evidence

       Appellant acknowledges the defensive theory presented at trial was that the
sexual abuse did not occur, not that it happened before September 1, 2007. Thus the
specific issue relevant to the charge error in this case was not contested during trial.
Appellant concedes this factor weighs against a finding of egregious harm. Since
the dates did not vitally affect a defensive theory, we agree. See Kuhn, 393 S.W.3d
at 528; Martin, 335 S.W.3d at 876; Taylor, 332 S.W.3d at 493.

                                     III.    Balancing the factors

       The State relies upon the last factor to “trump” the others because there was
sufficient evidence for the jury to infer two or more acts of sexual abuse occurred
after September 1, 2007. See Gomez, 459 S.W.3d at 663; Kuhn, 393 S.W.3d at 529;
Martin, 335 S.W.3d at 876.1 We do not disagree that there was sufficient evidence
to support such an inference and appellant does not claim otherwise. However, the
cases relied upon by the State are distinguishable from the present case.

       In Gomez, 459 S.W.3d at 661, the application paragraph correctly instructed
the jury that it had to find beyond a reasonable doubt the defendant had committed
two or more acts of sexual abuse from on or about September 1, 2007 through
November 21, 2011. The opening paragraph of the charge also correctly instructed
the jury. Id. The charge included a limiting instruction for offenses other than the

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         The State also cites several unpublished cases for this proposition. See Whitington v. State,
No. 08-13-00102-CR, 2015 WL 3653326, at *6–7 (Tex. App.—El Paso Apr. 24, 2015, pet. ref’d)
(not designated for publication); Flores v. State, No. 13-12-00606-CR, 2014 WL 1514129, at *6
(Tex. App.—Corpus Christi–Edinburg Apr. 17, 2014, pet. ref’d) (mem. op., not designated for
publication); Oliver v. State, No. 10-12-00389-CR, 2014 WL 1016244, at *8–9 (Tex. App.—Waco
Mar. 13, 2014, no pet.) (mem. op., not designated for publication). But as the State points out in
urging this court to ignore Mendoza v. State, No. 14-15-00537-CR, 2016 WL 3341107, at *6 (Tex.
App.—Houston [14th Dist.] June 14, 2016, no pet.) (mem. op., not designated for publication),
unreported decisions have no precedential value. Furthermore, Whitington, Flores, and Oliver are
akin to Gomez, Kuhn, and Martin and distinguishable from the present case while Mendoza is not.

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offense alleged in the indictment. Id. During voir dire, the State told the panel that it
had to prove two or more acts between September 1, 2007, through November 21,
2011. Id. at 662. Additionally, in closing argument, the State directed the jury’s
attention to the effective date of the statute, the correctly-worded application
paragraph, and also told the jury the State had to prove the defendant had sex with
the complainant from September 1, 2007 through November 21, 2011. Id. The
Gomez court concluded the entirety of the court’s charge, argument of counsel, and
other relevant information weighed against a finding of egregious harm. Id.

      The court also concluded the state of the evidence weighed against a finding
of egregious harm because the evidence at trial permitted the jury to infer that at
least two acts of abuse occurred between September 1, 2007 through November 21,
2011. Id. In the case before us, the State relies solely upon this conclusion. Clearly,
the facts in Gomez (that the charge was not wholly erroneous, as it was in this case,
and that the State did not expressly misstate the law to the jury, as it did in this case),
distinguish Gomez from the case at bar. The only similarity between Gomez and this
case, that the jury could have inferred at least two acts of sexual abuse occurred after
September 1, 2007, does not outweigh the facts that distinguish Gomez from this
case— a charge that never correctly instructed the jury and repeated misstatements
of the law by the State.

      The same is true of Kuhn, 393 S.W.3d at 524. In Kuhn, only the abstract
portion of the charge was erroneous. Id. The opening paragraph and the application
paragraphs were correct. Id. at 529. The charge included a limiting instruction
prohibiting the jury from considering the uncharged abuse for impermissible
purposes. Id. at 531. The State did not misstate, but correctly explained, the law to
the jury. Id. at 530. In voir dire and closing argument, the State directed the jury to
the correct law applicable to the case. Id. at 530–31. The court concluded that from

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the evidence, the jury could have reasonably inferred the defendant committed at
two acts of abuse after September 1, 2007. Id. at 525. Again, Kuhn is distinguishable
from the present case because the charge in Kuhn was not wholly erroneous, the
charge included a limiting instruction, the State did not misstate the law, and the
State correctly explained the applicable law to the jury. As in Gomez, these
differences far outweigh a singular similarity.

      In Martin, 335 S.W.3d at 867, the application paragraph was correct, but the
charge included the same instruction in the abstract portion that was present in Kuhn
and present in this case —that the State may prove the offenses that were committed
before the date presented in the indictment. Id. at 874. In closing argument in Martin,
the State emphasized that instruction in the charge. Id. at 875. The Martin court
determined the error did not cause egregious harm because the jury could consider
conduct occurring before September 1, 2007, as circumstantial evidence of the
defendant’s conduct after that date; the defensive theory was that the complainant
was not credible and no acts of sexual abuse occurred at any time; the jurors clearly
believed the complainant and therefore it was unlikely they believed the conduct
stopped before September 1, 2007; and the evidence was legally sufficient to support
a finding that two or more acts of abuse occurred during a thirty-day period after
September 1, 2007. As in Gomez and Kuhn—but not this case—there were not
repeated misstatements of the law applicable to the case by the State. We therefore
conclude the state of the evidence does not weigh so heavily as to overcome a charge
that was, in each and every respect, erroneous and accompanied by repeated
misstatements of the law applicable to the case.




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                                      IV.      Conclusion

      We therefore conclude the jury charge error egregiously harmed appellant and
sustain his issue. We reverse the trial court’s judgment of conviction and remand
this case to the trial court for further proceedings.




                                         /s/       Margaret “Meg” Poissant
                                                   Justice



Panel consists of Justices Christopher, Spain, and Poissant.
Publish — Tex. R. App. P. 47.2(b).




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