                                        COURT OF APPEALS
                                     EIGHTH DISTRICT OF TEXAS
                                          EL PASO, TEXAS

                                                        §
    ANTONIO MEJIA RUIZ,                                                    No. 08-14-00026-CR
                                                        §
                                  Appellant,                                  Appeal from the
                                                        §
    v.                                                                 296th Judicial District Court
                                                        §
                                                                         of Collin County, Texas
    THE STATE OF TEXAS,                                 §
                                                                          (TC# 296-82375-2012)
                                  Appellee.             §

                                                O P I N I O N1

         A jury found Antonio Mejia Ruiz guilty of continuous sexual abuse of a child and

sentenced him to life imprisonment. On appeal, Ruiz contends the trial court erred by failing to

instruct the jury on the lesser-included offense of aggravated sexual assault of a child. We affirm.

                        FACTUAL AND PROCEDURAL BACKGROUND

         The offense of continuous sexual abuse of a child (hereinafter, “CSAS”) occurs when a

person commits any of several enumerated acts of sexual abuse two or more times “during a period

. . . 30 or more days in duration[.]” See TEX.PENAL CODE ANN. § 21.02 (b)(1), (c)(1)-(8)(West

Supp. 2014). One of the enumerated acts is aggravated sexual assault of a child (hereinafter,

“ASAC”). See id. § 21.02 (c)(4). The indictment in this case alleged that, from on or about

1
 This case was transferred to this Court from the Fifth Court of Appeals pursuant to an order issued by the Supreme
Court of Texas. See TEX.GOV’T CODE ANN. § 73.001 (West 2013).
March 30, 2012 to June 1, 2012, Ruiz committed eight separate and distinct acts of sexual abuse

against N.P., including six instances of ASAC: (1)-(2) penetrating N.P.’s vagina with his penis

and finger; (3)-(5) contacting N.P.’s vagina, anus, and mouth with his penis; and (6) contacting

N.P.’s vagina with his mouth. At the time of the commission of each of these acts, Ruiz was 19

years old and N.P. was 12 years old.2

          There is no dispute that Ruiz sexually abused N.P. He confessed to investigating officers

that he had sexual intercourse with N.P. on three occasions, the first occurring sometime in

November or December 2011 in an alley, the second in March or April 2012 in the same alley, and

the third in May 2012 in a parking lot. Ruiz also confessed to other acts of sexual abuse,

including having N.P. perform fellatio on him and masturbate him on one of the intervening days

between the second and third instances of sexual intercourse. N.P. shared that she had sexual

intercourse with Ruiz on three occasions, the first occurring in an alley in late March 2012,

approximately one week after her 12th birthday,3 and the second and third instances occurring

sometime thereafter. Although N.P. was unable to pinpoint the specific dates on which the

second and third instances of sexual intercourse occurred, she related that these incidents took

place, respectively, in her friend’s apartment and in Ruiz’s truck. N.P. also related that the last act

of sexual abuse occurred at her friend’s apartment in June 2012. N.P. remembered the date of this

incident because it occurred at a party on or near the last day of school.

          Contending that N.P.’s statements and testimony failed to establish with certainty “when

this all got started,” Ruiz requested an instruction on the lesser-included offense of ASAC to allow

2
  It is a statutory requirement that, “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)(2).
Ruiz does not contend this statutory requirement was not met.
3
    N.P. was born March 23, 2000.
                                                           2
the jury to convict him if it did not “believe beyond a reasonable doubt that these incidents

occurred outside of the 30 day time frame[.]” The State objected, arguing that the instruction was

not warranted because “no rational jury could find anything but a continuous [offense]” based on

the “evidence from both [N.P.] and from the defendant’s statement that he gave to the detectives.”

The trial court denied Ruiz’s request.

                                      LESSER-INCLUDED OFFENSE

         Ruiz argues the trial court should have instructed the jury on the lesser-included offense of

ASAC because the jury could have disbelieved the testimony of the State’s witnesses and

concluded that the sexual abuse was committed in a 30-day period. But an instruction on a

lesser-included offense is not warranted merely because the jury may disbelieve crucial evidence

pertaining to the greater offense. Bignall v. State, 887 S.W.2d 21, 24 (Tex.Crim.App. 1994).

Instead, it is warranted solely if 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.4

Id. In other words, there must be some evidence affirmatively rebutting or negating an element of

the greater offense, or some evidence subject to different interpretation, one of which rebuts or

negates the crucial element. Ramirez v. State, 976 S.W.2d 219, 227 (Tex.App.--El Paso 1998,

pet. ref’d).        The State—correctly conceding ASAC is a lesser-included offense of

CSAC5—asserts that the trial court did not err by refusing to instruct the jury as requested by Ruiz

because there is no such evidence. We agree.

4
  This is one of two requirements that must be met before a lesser-included offense is submitted to the jury. See Hall
v. State, 225 S.W.3d 524, 535-36 (Tex.Crim.App. 2007). The other is that the charged offense also includes the lesser
offense. Id.
5
  See Soliz v. State, 353 S.W.3d 850, 854 (Tex.Crim.App. 2011)(holding that “a[ ] [predicate] offense listed under
Subsection (c) will always” be a lesser offense of continuous sexual abuse because the latter “is, by its very definition,
the commission under certain circumstances of two or more of the offenses listed in Subsection (c)”)[Internal
quotations and emphasis omitted].
                                                            3
       The record does not support an instruction on the lesser-included offense of ASAC. Ruiz

does not direct our attention to some evidence that all the acts of sexual abuse occurred only within

a 30-day window, and our examination of the record fails to so establish. While Ruiz is correct in

that the State did present evidence of a specific date on which the acts of sexual abuse ended, i.e.,

June 1, 2012, there is no evidence in the record to suggest that all the acts of sexual abuse did not

occur for 30 days or more. That a jury could disbelieve the testimony of the State’s witnesses

regarding the date range for the continuous sexual abuse is not affirmative evidence that the abuse

did not take place over the required number of days. See Bignall, 887 S.W.2d at 24. Even if jury

did not believe the State’s witnesses, the record establishes that the acts of sexual abuse occurred

for 30 days or more. In his stationhouse interview with the police, the English transcription of

which was admitted at trial, Ruiz divulged that he penetrated N.P.’s vagina with his finger in

March 2012 and had sexual intercourse with her the third time “[a]bout a month and a half or two”

before the interview, which took place on July 11, 2012. Based on the evidence in the record, a

jury could not rationally find that if Ruiz is guilty, he is guilty only of the lesser-included offense

of ASAC. Ruiz’s issue is overruled.

                                          CONCLUSION

       The trial court’s judgment is affirmed.



May 29, 2015
                                               YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)



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