      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-13-00736-CR



                                   Julio Hernandez, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
      NO. D-1-DC-12-301705, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted appellant Julio Hernandez of continuous sexual abuse of a child and

assessed punishment at thirty-eight years’ imprisonment. See Tex. Penal Code § 21.02. In two

issues, Hernandez contends that (1) the evidence is insufficient to support his conviction; and (2) the

jury charge contained error that resulted in egregious harm.              We will affirm the trial

court’s judgment.

                                         BACKGROUND


               The record shows that appellant began a romantic relationship with O.A.’s mother

and moved in with O.A.’s mother, O.A., and O.A.’s sister in 2001.1 In 2005, when O.A. was

approximately seven years old, appellant and O.A.’s mother got married, and the family moved to


       1
         The background of this case and the evidence adduced at trial are well known to the parties,
and we therefore limit recitation of the facts.
a house on Ridgeway in Austin, where they lived for one year. They then bought a house on Blue

Meadow in Austin and lived there from 2006 until appellant and O.A.’s mother separated in

May 2010. Throughout the couple’s relationship, O.A.’s mother worked as a home-health aide and

was sometimes required to work overnight.

               O.A. testified about acts of sexual abuse that occurred after the family moved to the

home on Blue Meadow. According to her testimony, the acts included appellant penetrating her

sexual organ with his sexual organ and appellant making contact with her sexual organ using his

mouth. O.A. testified that “[i]t felt like every day” that appellant committed these acts and that the

acts continued happening until her seventh-grade year. When O.A. was in seventh grade, O.A. told

her mother about an instance of sexual abuse. O.A.’s mother confronted appellant, and appellant

moved out.

               Appellant did not testify at trial, but a videotape of his pre-trial interrogation was

introduced as evidence at trial. In the videotape, appellant stated that he started having sex with O.A.

when she was eleven or twelve years old. He stated that at first, he did not penetrate her but just

touched her. He said that over time, he ended up putting his sexual organ into O.A.’s sexual organ

on about four occasions and putting his fingers into her sexual organ on about three or four

occasions. He further stated that all of the incidents occurred over approximately a two-year period.

               After a trial, a jury convicted appellant of continuous sexual abuse of a child and

assessed punishment at thirty-eight years in prison. This appeal followed.




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                                            DISCUSSION

                In two issues, appellant argues that (1) there is insufficient evidence that

he committed two or more acts of sexual abuse after September 1, 2007, the date the

continuous-sexual-abuse statute (“the statute”) became effective; and (2) the trial court erred in

failing to instruct the jury that the jury could consider only evidence of acts of sexual abuse occurring

after September 1, 2007. We address each issue separately below.


Sufficiency of the Evidence

                When reviewing the sufficiency of the evidence to support a conviction, we consider

all the evidence in the light most favorable to the verdict to determine whether, based on that

evidence and the reasonable inferences that can be drawn from it, any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). In our

analysis, we assume that the trier of fact resolved conflicts in the testimony, weighed the evidence,

and drew reasonable inferences in a manner that supports the verdict. Jackson, 443 U.S. at 319;

Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We consider only whether the jury

reached a rational decision. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (“Our role

on appeal is restricted to guarding against the rare occurrence when a factfinder does not act

rationally.” (quoting Laster, 275 S.W.3d at 517)).

                To establish continuous sexual abuse of a child, the State must prove that, during a

period of thirty or more days in duration, the defendant committed two or more acts of sexual abuse,

and at the time of the commission of each of these acts of sexual abuse, the defendant was seventeen

                                                   3
years of age or older and the victim was younger than the age of fourteen. See Tex. Penal Code

§ 21.02. An “act of sexual abuse” includes, as is relevant here, aggravated sexual assault of a child.

See id. A person commits aggravated sexual assault of a child if he knowingly or intentionally

causes the penetration of a child’s anus or sexual organ by any means or causes his mouth to contact

the sexual organ of a child younger than fourteen years of age. Id. § 22.021(a)(1)(B)(i), (iii),

(a)(2)(B).

               To prove the offense of continuous sexual abuse of a child, the State need not prove

the exact dates of each act of abuse occurring during the thirty-day time period. Michell v. State,

381 S.W.3d 554, 561 (Tex. App.—Eastland 2012, no pet.) (noting that legislature created statute to

address sexual assaults against children who are normally unable to identify exact dates of offenses

when sexual abuse is ongoing); see also Dixon v. State, 201 S.W.3d 731, 736 (Tex. Crim. App.

2006) (cautioning courts not to impose unrealistic expectations regarding proof of dates of abuse

because child victims often do not know exact dates of sexual assault). However, the State must

prove that the acts of sexual abuse occurred after September 1, 2007, the date the statute became

effective. See Kuhn v. State, 393 S.W.3d 519, 524 (Tex. App.—Austin 2013, pet. ref’d) (statute does

not apply to acts of sexual abuse committed before statute’s effective date).

               Considering all of the evidence in the light most favorable to the verdict, we conclude

that the evidence is sufficient to support the jury’s determination that appellant committed two or

more acts of sexual abuse against O.A. over at least a 30-day time period that occurred after

September 1, 2007. Specifically, appellant himself admitted during an interrogation that he put his

sexual organ inside O.A.’s sexual organ on about four occasions and his fingers inside O.A.’s sexual



                                                  4
organ on three or four occasions during the time period when O.A. was eleven or twelve years old

and that the incidents occurred over a two-year period. The evidence shows that O.A. was born in

1998, making O.A. eleven and twelve years old in 2009 and 2010, which was well after the

September 1, 2007 effective date of the statute.

                Further, O.A. testified that sexual acts constituting aggravated sexual assault began

when the family moved to the house on Blue Meadow. O.A.’s mother testified that the family lived

in the Blue Meadow house from 2006 until the time that O.A.’s mother and appellant separated in

May 2010. At the time of the separation, O.A. was twelve years old. O.A. testified that “[i]t felt like

every day” that appellant sexually assaulted her during that time. She further testified that the sexual

acts happened “every time [her] mom would go to work,” “regularly” and “very often” and that the

acts did not stop until she was in seventh grade.

                Appellant’s statements alone are sufficient evidence that he committed two or more

acts of sexual abuse against O.A. over at least a thirty-day duration after September 1, 2007, as his

admissions indicated that he committed acts of sexual abuse against O.A. when she was eleven or

twelve years old (which was 2009 and 2010) and that the time period over which he had sex with

her lasted for two years. O.A. testified about more frequent incidents of sexual abuse, but her

testimony was otherwise consistent with appellant’s statements in that she testified that the sexual

abuse occurred in the Blue Meadow house, which she lived in from the time she was approximately

eight years old until she was approximately fourteen years old (2006 through 2012), and that the

abuse continued until appellant moved out of the house, which was in 2010 when O.A. was twelve

years old and in seventh grade.



                                                    5
               Given all the evidence, the jury could have reasonably inferred at the very least that

appellant was committing acts of sexual abuse against O.A. from 2008 through 2010. See Jackson,

443 U.S. at 319 (jury may draw reasonable inferences from evidence). Further, the jury could have

reasonably believed that appellant had minimized his wrongdoing when speaking to interrogators

and that O.A.’s testimony, which indicated much more frequent abuse over a longer time period, was

more credible. See Tex. Code Crim. Proc. arts. 36.13, 38.04 (jury is sole judge of credibility of

witnesses and weight to be given witnesses’ testimony); Jackson, 443 U.S. at 319 (jury may resolve

inconsistencies or conflicts in witnesses’ testimony). Based on all of the evidence presented at trial,

we conclude that the evidence is sufficient to support the jury’s determination that appellant was

guilty of continuous sexual abuse of a child. Accordingly, we overrule appellant’s first issue.


Jury Charge

               In his second issue, appellant contends that the trial court erred in failing to instruct

the jury that the jury could consider only evidence of acts of sexual abuse occurring after

September 1, 2007. In reviewing claims of jury-charge error, we first determine if there was error,

and then, if there was error, we decide whether the error caused sufficient harm to warrant a reversal.

Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Kuhn, 393 S.W.3d at 524. The amount

of harm necessary to warrant a reversal depends on whether the appellant objected to the jury charge.

Ngo, 175 S.W.3d at 743; Kuhn, 393 S.W.3d at 524. If the appellant preserved error with a timely

objection in the trial court, the record need only show “some harm” to warrant a reversal. Ngo,

175 S.W.3d at 743; Kuhn, 393 S.W.3d at 524. If the appellant did not preserve error, we will reverse

only if the record shows “egregious harm.” Ngo, 175 S.W.3d at 743-44; Kuhn, 393 S.W.3d at 524.

                                                  6
In this case, appellant did not object to the jury charge at trial, making his complaint on appeal

subject to an “egregious harm” analysis in the event he shows the existence of an error.

               Regarding the first step of the jury-charge analysis—whether there was error in the

jury charge—appellant argues that the jury charge was erroneous in allowing the jury to convict him

based on conduct occurring before the effective date of the statute. Specifically, appellant complains

of the following language in the charge:


               Members of the jury, you are not required to agree unanimously on
               which specific acts of sexual abuse were committed by the defendant,
               Julio Hernandez, or the exact date when those acts were committed.
               You are required to agree unanimously that the defendant,
               Julio Hernandez, during a period that is 30 or more days in duration
               committed two or more acts of sexual abuse.
                                               ....

               You are further charged as the law in this case that the State is not
               required to prove the exact date alleged in the indictment but may
               prove the offense, if any, to have been committed at a time prior to
               the presentment of the indictment so long as said offense, if any,
               occurred within the statute of limitations. With regard to the offenses
               of Continuous Sexual Assault of a Young Child, Aggravated Sexual
               Assault of a Child, Indecency with a Child by Contact and Indecency
               with a Child by Exposure there is no statute of limitations. Therefore,
               you are charged as a part of the law in this case that the State is not
               required to prove the exact dates alleged in the indictment but may
               prove the offenses, if any, to have been committed at any time prior
               to October 23, 2012 [the date of presentment of the indictment].


               Consistent with previous decisions of this Court addressing language similar to that

in the second paragraph above, we agree with appellant that the charge was erroneous.2 See Kuhn,


       2
        The first paragraph quoted above, which merely explains that the State is not required to
prove the exact dates of each act of sexual abuse, is a proper instruction. Michell v. State,

                                                  7
393 S.W.3d at 524; Martin v. State, 335 S.W.3d 867, 876 (Tex. App.—Austin 2011, pet. ref’d)

(language was erroneous where there was nothing in paragraph explaining that jury could not convict

defendant for acts occurring before September 1, 2007). Having determined the jury charge

contained error, we now turn to an analysis of whether the error caused “egregious harm.”

                Under the “egregious harm” standard, reversal is required only if appellant

suffered harm so egregious that he was denied a fair and impartial trial. See Barrios v. State,

283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1985) (op. on reh’g)). In determining whether Appellant was deprived of a fair and

impartial trial, we review (1) the entire jury charge; (2) the state of the evidence, including contested

issues and the weight of probative evidence; (3) the argument of counsel; and (4) any other relevant

information revealed by the record as a whole. Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim.

App. 2011); Almanza, 686 S.W.2d at 171. Egregious harm means that the charge error 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 clearly and significantly more persuasive. Taylor, 332 S.W.3d at 490;

Almanza, 686 S.W.2d at 172.

                Based on the above factors, we conclude that the charge error was not egregiously

harmful. In the jury charge, the introduction paragraph stated that the allegation at issue was that

appellant committed the offense of continuous sexual abuse of a young child “on or about the 1st day



381 S.W.3d 554, 561 (Tex. App.—Eastland 2012, no pet.) (legislature created statute to address
sexual assaults against children who are typically unable to identify exact dates of ongoing sexual
abuse); Martin v. State, 335 S.W.3d 867, 874 (Tex. App.—Austin 2011, pet. ref’d) (“It was not
incorrect to instruct the jurors that in a prosecution for continuous sexual abuse of a young child, the
State is not bound to prove the exact dates alleged in the indictment.”).

                                                   8
of September 2007 through the 25th day of December 2010.” Then, the charge repeated the same

date range in the application paragraph for the offense of continuous sexual abuse of a child, stating:


               Bearing in mind the foregoing instructions, if you believe from the
               evidence beyond a reasonable doubt that the defendant, Julio
               Hernandez, on or about the 1st day of September, 2007, through the
               25th day of December, 2010, and before the presentment of this
               indictment in the County of Travis and State of Texas, during a
               period that was 30 days or more in duration, committed two or more
               acts of sexual abuse against [O.A.], a child younger than 14 years of
               age . . .


The correct statement of law in the application paragraph mitigates against a finding of egregious

harm. Kuhn, 393 S.W.3d at 529-30. Further, the charge continued to use the September 1, 2007

start date for six lesser-included offense application paragraphs, either alleging that the

lesser-included offense occurred “on or about the 1st day of September, 2007, and before the

presentment of this indictment . . .” or “on or about the 1st day of September, 2007.” Thus, the jury

charge repeatedly used September 1, 2007 as a start date for any offenses that the jury may have

considered.

               Regarding the state of the evidence, we have already determined that the evidence

presented was sufficient to prove that appellant was guilty of the offense of continuous sexual abuse

of a child based on acts that occurred after September 1, 2007. Appellant’s videotaped admissions

alone are enough evidence to convict him of the offense based on acts occurring after

September 1, 2007, as he admitted to committing acts of sexual abuse starting when O.A. was eleven

or twelve years old (which was 2009 and 2010) and lasting for two years. In addition, although the

jury could not convict appellant for continuous sexual abuse of a child based on his conduct prior

                                                  9
to September 1, 2007, the jury could consider the previous conduct as circumstantial evidence of

appellant’s conduct after September 1, 2007. See Tex. Code Crim. Proc. art. 38.37; Martin,

335 S.W.3d at 876.

               Further, during closing arguments, the prosecutor stated that the relevant date range

for the jury’s consideration was September 1, 2007 through December 25, 2010, and the prosecutor

then went on to focus her argument on the evidence of sexual acts occurring after September 1, 2007,

when O.A. was eleven and twelve years old. Specifically, the prosecutor argued the following:


               One of the first things I want to talk about is the charge that the Court
               just went over with you. This is the only thing that we have to prove
               in order to prove continuous sexual abuse of a young child. These are
               our only elements. The defendant, there is no problem with that, we
               know who the defendant is. On or about September 1st, 2007,
               through December 25th, 2010, we know it’s on or about. We don’t
               have to prove exact dates.
                                                  ....

               We have to prove that [appellant] did two or more acts during this
               period of time that we have alleged.
                                               ....

               [O.A.] was nervous, and she was scared to testify, and in front of this
               really—this roomful of strangers and the defendant, somebody who
               had violated her for years, and she was having a hard time
               remembering exactly when it started. But she knew that it went on
               for a minimum of at least a year, and she said the last time happened
               when she was in seventh grade.
                                               ....

               [Appellant] very specifically said that he penetrated her vagina with
               his finger, so we know that he was clearly penetrating her sexual
               organ with his finger . . . . He also clearly said that he had sexual
               intercourse with her. He said that he placed his penis inside her
               vagina, and he said this happened four times . . . . Later on in that



                                                  10
                 conversation . . . . [h]e said that this went on for two years. He said
                 that she was eleven or twelve when it started.


As shown in the above excerpts, the prosecutor’s argument consistently directed the jury to the

proper time period.

                 A review of the record—including the jury charge, evidence presented at trial, and

arguments of counsel—shows that the jury could have convicted appellant of continuous sexual

abuse of a child even if the jury charge had included an instruction limiting the jury’s consideration

to acts occurring after September 1, 2007. Accordingly, we conclude that the charge error was not

egregiously harmful to appellant, and we overrule appellant’s second issue.


                                           CONCLUSION

                 Having overruled both of appellant’s issues, we affirm the trial court’s judgment

of conviction.



                                                        _______________________________
                                                        Cindy Olson Bourland, Justice

Before Chief Justice Rose, Justices Goodwin and Bourland

Affirmed

Filed: October 15, 2015

Do Not Publish




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