                           PD-0789-15

                                IN THE
                   TEXAS COURT OF CRIMINAL APPEALS

ANTONIO MEJIA RUIZ,

                 Petitioner,

vs.                                                No. 08-14-00026-CR

THE STATE OF TEXAS,

                Respondent.

      *************************************************************	  

       PETITION FOR DISCRETIONARY REVIEW
      *************************************************************	  



                                   Jeffrey C. Grass & Associates, PLLC

                                   Jeffrey Grass
                                   SBN 00787581
                                   101 E. Park Blvd., Ste. 107
                                   Plano, Texas 75074
                                   Tel: (972) 422-9999
         July 30, 2015
                                   Fax: (972) 423-2646
                                   Jeff@GrassLaw.com




                 PETITIONER REQUESTS ORAL ARGUMENT
                           TABLE OF CONTENTS


Index of Authorities……………………………………………………………….3

Statement Regarding Oral Argument……………………………………………..3

Statement of the Case……………………………………………………………..4

Statement of Procedural History………………………………………………….4

Grounds for Review………………………………………………………………4

Argument…………………………………………………………………………5

    1. The trial court erred in not instructing the jury to consider the lesser
       offense of Aggravated Sexual Assault on a Child (ASAC).

          A. There is precedent that states the court should instruct the jury
             on a lesser-included offense when there is evidence that could
             possibly convict the defendant of the lesser offense. Hicks v.
             State, 372 S.W.3d 649 (Tex.Crim.App.2012).

          B. The offense of ASAC has been previously used and stated as
             an appropriate lesser-included instruction for the offense of
             Continuous Sexual Assault of a Child (CSAC). Solis v. State,
             353 S.W.3d. 850 (Tex.Crim.App.2012).

Prayer for Relief………………………………………………………………….9

Certificate of Service…………………………………………………………….10

Certificate of Compliance………………………………………………………..11

Appendix…………………………………………………………………………12




                                        2	  
                           INDEX OF AUTHORITIES

Cases

Hicks v. State, 372 S.W.3d 649 (Tex.Crim.App.2012)…………………………..2,5

Solis v. State, 353 S.W.3d. 850 (Tex.Crim.App.2012)…………………………..2,7


Statutes

TEX. PENAL CODE ANN. 21.02 (West Supp.2012)

TEX. CODE CRIM. PROC. art. 37.09

TEXAS RULE OF APPELLATE PROCEDURE 25.2


               STATEMENT REGARDING ORAL ARGUMENT

        The petitioner believes that an oral argument would be productive because

the evidence in the case is disputed between the prosecution and the petitioner. The

evidence that is disputed is also the evidence that decides whether the petitioner

could be prosecuted for CSAC or the lesser charge of Aggravated Sexual Assault

of a Child. Petitioner believes that the facts could be discussed more productively

orally.




                                          3	  
                              STATEMENT OF THE CASE

      The petitioner was indicted for Continuous Sexual Assault of a Child,

convicted, and sentenced to life in prison. The petitioner appealed on the grounds

that the court should have instructed the jury to consider the lesser charge of

Aggravated Sexual Assault on a Child. The court declined to rule in favor of the

petitioner in the original appeal, stating that there was not sufficient evidence to

conclude that the abuse did not occur multiple times within thirty days. The

petitioner challenges this holding.




                                           4	  
                    STATEMENT OF PROCEDURAL HISTORY

      The Eighth Court of Appeals in Texas issued their opinion on May 29, 2015.

No motion for rehearing was filed, therefore there was no date the motion for

rehearing was either accepted or denied.

                               GROUNDS FOR REVIEW

   1. The trial court erred by instructing the jury solely on the charge of

      Continuous Child Sexual Assault and refusing to instruct on the lesser

      included offense of Aggravated Sexual Assault of a Child, therefore the

      petitioner was denied a fair trial.

                                     ARGUMENT

1. The court erred in not instructing the jury to consider the lesser offense of

   Aggravated Sexual Assault on a Child (ASAC).

            A. There is precedent that states the court should instruct the jury

                on a lesser-included offense when there is evidence that could

                possibly convict the defendant of the lesser offense. Hicks v.

                State, 372 S.W.3d 649 (Tex.Crim.App.2012).

   A “lesser-included offense” is defined in the Texas Code of Criminal

   procedure as:




                                            5	  
                            (1) it is established by proof of the same or less than all the facts

                            required to establish the commission of the offense charged;13

                       (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

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

                       included offense.” TEX.CODE CRIM. PROC. art. 37.09.

                 If an offense meets any of these requirements, then it should be considered

                 a lesser offense to the offense that the defendant is originally charged with.

                 The facts of the case show that neither of the states witnesses (the 12-year-

                 old                                              (NP) or Antonio Ruiz (Petitioner)) were certain about the

                 dates of the sexual encounters and neither could say with certainty that the

                 sexual encounters happened multiple times in a thirty day period. Detective

                 Caballero1 stated that the Petitioner said in his original interview with the

                 Police that the first sexual encounter with NP happened in November or

                 December 2011, and then later stated a different date. (RR v3 p141) The

                 Petitioner then stated the second sexual encounter occurred in March or
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1
           Detective Caballero was the Law Enforcement Officer that originally interviewed the Petitioner
before he was indicted.	  

                                                                                                              6	  
April of 2012. (RR v3 p144). Finally, the Petitioner testified the third

instance of sexual intercourse happened in May of 2012. (RR v3 p 145)

Therefore, there should have been sufficient doubt in order for the court to

instruct the jury to consider the lesser offense of ASAC. The State cannot

say without a doubt that the jury would have believed the inconsistent

testimony of the two witnesses, raising enough doubt to allow the jury to

consider the lesser offense.

      B. The offense of ASAC has been previously used and stated as an

          appropriate lesser-included instruction for the offense of

          Continuous Sexual Assault of a Child (CSAC). Solis v. State,

          353 S.W.3d. 850 (Tex.Crim.App.2012).

In the case Solis v. State, the Court of Criminal Appeals decided that ASAC

was an acceptable lesser offense to CSAC. The court reviewed the history of

the law and pointed to a legislative committee hearing in which Former State

Senator Florence Shapiro stated:

   “There will not have to be a retrial as long as it is within the confines

   of the continuous sexual assault.... If in fact during the trial of the

   continuous sexual assault, ... the jury says that maybe they couldn’t

   find him guilty or her guilty of all of the continuous actions, they can

   specify one of these five[sexual offenses] without actually having to go



                                     7	  
          back and retrying this case again.” Solis, 353 at 853 (Citing Senate

          Comm. on Criminal Justice, public hrg., S.B. 78, video at 41:25–42:05

          (March 20, 2007).

      `After the court reviewed this information, it was determined that ASAC

was in fact a viable lesser offense to CSAC.

                               PRAYER FOR RELIEF

   For reasons stated above, the Petitioner was denied a fair trial. Wherefore,

premises considered, Petitioner prays the court decides to reverse the conviction

and grant the Petitioner a new trial.

                                                  Respectfully,

                                                  /s/ Jeffrey C. Grass_______	  
                                                  Jeffrey C. Grass

                                                  Jeffrey Grass
                                                  SBN 00787581
                                                  101 E. Park Blvd., Ste. 107
                                                  Plano, Texas 75074
                                                  Tel: (972) 422-9999
                                                  Fax: (972) 423-2646
                                                  Jeff@GrassLaw.com
                                                  ATTORNEY FOR PETITIONER




                                          8	  
                        CERTIFICATE OF SERVICE

I hereby certify that on July 29, 2015, a copy of the foregoing Petition for

Discretionary Review was served on the following by certified mail, return

receipt requested:

Greg Willis
John R. Rolater, Jr.
Libby J. Lange
2100 Bloomdale Rd., Suite 200
McKinney, TX 75071


                                               /s/ Jeffrey C. Grass_______	  
                                               Jeffrey C. Grass




                     CERTIFICATE OF COMPLIANCE

I hereby certify that this Petition complies with the word limitations set forth in

the Texas Rule of Appellate Procedures 9.4(i)(2)(D). Relying on the word count

provided in the word processing document used to produce this brief, the

undersigned attorney certifies that this Petition contains 1,218 words.



                                               /s/ Jeffrey C. Grass_______	  
                                               Jeffrey C. Grass




                                       9	  
APPENDIX




  10	  
                                        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)



                                                  4
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