Opinion issued May 9, 2019




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00282-CR
                           ———————————
                   GEORGE LEE MARTINEZ, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


              On Appeal from the Criminal District Court No. 2
                          Tarrant County, Texas
                     Trial Court Case No. 1530526R


                         MEMORANDUM OPINION

      A seven-count indictment charged appellant George Martinez with

continuous sexual abuse of a child (Count One), aggravated sexual assault (Counts



      The Supreme Court of Texas transferred this appeal from the Court of
      Appeals for the Second District to this court. We are unaware of any conflict
      between precedent of that court and this court on any relevant issue.
Two, Three, and Four), and indecency with a child (Counts Four, Five, Six, and

Seven). The jury found Martinez guilty on Counts One and Six, and, in accordance

with the charge’s instructions, did not answer the other counts. After a punishment

hearing before the trial court, punishment was assessed at 50 years’ imprisonment

on Count One and at 20 years’ imprisonment on Count Six, to run concurrently.

        On appeal, Martinez asserts in three issues that (1) the evidence is

insufficient to support the continuous sexual abuse conviction, (2) some of the

court costs assessed in this case should be deleted, and (3) that the judgment

incorrectly reflects the offense of conviction for Count Six. We affirm the trial

court’s judgment on Count One and affirm the trial court’s judgment on Count Six

as modified.

                             Sufficiency of the Evidence

        In his first issue, Martinez contends that the evidence is legally insufficient

to prove that he committed two acts of sexual abuse over a period of thirty or more

days.

        A challenge to the sufficiency of the evidence requires that we identify the

essential elements of the charged offense and ask whether the evidence and

reasonable inferences therefrom, viewed in the light most favorable to the

conviction, would permit a rational juror to find each element of the charged

offense beyond a reasonable doubt. Braughton v. State, __ S.W.3d __, __, 2018


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WL 6626621, at *11 (Tex. Crim. App. Dec. 19, 2018). A reviewing court

considers all of the evidence adduced at trial, whether it was admissible or

inadmissible. See Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013).

Whether a conviction rests on direct or circumstantial evidence, the sufficiency

standard remains unchanged. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.

2012). The analysis requires us to keep in mind that the jury is the sole judge of the

evidence’s weight and credibility. Braughton, __ S.W.3d at __, 2018 WL 6626621,

at *11.

      A jury may draw multiple reasonable inferences as long as each inference is

supported by the evidence presented at trial. Hooper v. State, 214 S.W.3d 15 (Tex.

Crim. App. 2007). We presume that the jury resolved any conflicting inferences in

favor of the verdict. Braughton, __ S.W.3d at __, 2018 WL 6626621, at *11. This

standard mandates great deference to the jury, but we do not defer to a jury’s

conclusions that are based on “mere speculation or factually unsupported

inferences or presumptions.” Id. (quoting Hooper, 214 S.W.3d at 15–16).

      A person commits continuous sexual abuse of a young child if, during a period

that is 30 or more days in duration, he commits two or more acts of sexual abuse,

regardless of whether they are committed against one or more victims, and at the

time of the commission, the actor is 17 years of age or older and the victim is a child

younger than 14 years of age. TEX. PENAL CODE § 21.02.


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       Count One of the indictment alleged:

             THAT [Martinez] . . . IN THE COUNTY OF TARRANT,
       STATE OF TEXAS, ON OR ABOUT THE 21ST DAY OF MAY
       2011, THROUGH THE 21ST DAY OF MAY 2013, DURING A
       PERIOD OF TIME THAT IS 30 DAYS OR MORE IN DURATION,
       DID COMMIT TWO OR MORE ACTS OF SEXUAL ABUSE,
       NAMELY: AGGRAVATED SEXUAL ASSAULT OF A CHILD
       UNDER 14 BY CAUSING THE SEXUAL ORGAN OF THE
       DEFENDANT TO CONTACT THE SEXUAL ORGAN OF A.D.,
       AND/OR BY CAUSING THE FINGER OF THE DEFENDANT TO
       PENETRATE THE SEXUAL ORGAN OF [A.D.], AND/OR BY
       CAUSING THE MOUTH OF THE DEFENDANT TO CONTACT
       THE SEXUAL ORGAN OF [A.D.], AND/OR INDECENCY WITH
       A CHILD BY CAUSING THE HAND OF THE DEFENDANT TO
       CONTACT THE GENITALS OF [A.D.] AND/OR BY CAUSING
       [A.D] TO CONTACT THE SEXUAL ORGAN OF THE
       DEFENDANT, AND AT THE TIME OF THE COMMISSION OF
       EACH OF THESE ACTS OF SEXUAL ABUSE [Martinez] WAS 17
       YEARS OF AGE OR OLDER AND [A.D.] WAS YOUNGER THAN
       14 YEARS OF AGE[.]

       Martinez’s specific complaint is that the evidence is insufficient to establish

beyond a reasonable doubt that a second act of sexual abuse occurred more than

thirty days after the first act.

       An appellate court measures the legal sufficiency of the evidence by the

elements of the offense as defined by a hypothetically correct jury charge. Malik v.

State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury

charge “sets out the law, is authorized by the indictment, does not unnecessarily

increase the State’s burden of proof or unnecessarily restrict the State’s theories of

liability, and adequately describes the particular offense for which the defendant was


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tried.” Id. The law as authorized by the indictment means the statutory elements of

the charged offense as modified by the factual details and legal theories contained

in the charging instrument. See Curry v. State, 30 S.W.3d 394, 404–05 (Tex. Crim.

App. 2000). A hypothetically correct jury charge, relevant to Martinez’s first issue,

required the State to prove that:

         (1) Martinez
         (2) committed two or more acts of aggravated sexual assault by:
            a. causing his penis to contact A.D.’s vagina,
            b. digitally penetrating’s vagina,
            c. causing A.D.’s mouth to contact his penis,
            d. touching A.D.’s vagina, or
            e. causing A.D. to touch his genitals with her hand
         (3) over a period of 30 or more days,
         (4) on or about May 21, 2011, through May 21, 2013.

See id.; TEX. PENAL CODE § 21.02.

         A.D., the victim, provided the most detail about the sexual abuse but did not

testify in detail regarding every individual act of sexual abuse. Her father, a SANE

nurse (sexual assault nurse examiner), and a forensic interviewer also testified

about the sexual abuse of A.D. based on her outcries, and A.D.’s mother, L.D.,

provided background and contextual testimony.

         A.D. was born in May of 2000. L.D., who had divorced A.D.’s father in

2006, met Martinez in 2009. Their relationship developed quickly, and Martinez

moved in with L.D. and her children. The relationship lasted a little over four

years.


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      In 2011 A.D. was in the sixth grade. Because L.D. worked and Martinez did

not work, he would be home when A.D. got home from school, and in the

summers, the children were home with him while L.D. was at work. According to

A.D., the first time that Martinez sexually abused her was when she was in the

sixth grade. That first sexual assault occurred during the summer, but A.D. did not

specify whether “summer” meant the summer before or the summer after her sixth-

grade year. L.D. testified that A.D.’s sixth-grade year was 2011 to 2012 and that

A.D. was eleven and twelve years old during sixth grade.

      According to A.D., on the first occasion, Martinez called her into his and

L.D.’s bedroom and he laid her down on the bed and began touching her. He

touched her chest through her clothing and then inside her bra. Martinez next

touched her vagina under her clothes and put his fingers into her vagina, and he

then inserted his penis into her vagina. This happened more than once. Other times,

Martinez put his tongue on A.D.’s chest and vagina, and he made her stroke his

penis. A.D. told the SANE that Martinez put his penis in her vagina, put his finger

in her vagina, and rubbed “the outside of her vagina [with his hand].” A.D. told the

forensic interviewer that Martinez touched her vagina and inserted his fingers into

her vagina.

      A.D. testified that the sexual abuse occurred “at least like three times a

week.” Martinez did “these things” to her when she was in the seventh grade, and


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the abuse “continue[d] in each grade [she] was in.” A.D. said that the last time

Martinez sexually abused her was at the end of her eighth-grade year. A.D. was in

eighth grade from 2013 to 2014. A.D. told the SANE that the sexual abuse began

when she was in the sixth grade and ended when she was in the eighth grade. A.D.

told the forensic interviewer that the sexual abuse started when A.D. was in sixth

grade and ended when she was in eighth grade. According to the forensic

interviewer, A.D. said that the last time Martinez sexually assaulted her, he “[put]

his penis in between her legs and put his penis, the part where he pees from, to her

part in the hole where she reproduces.” The sexual assaults ended when L.D. broke

up with Martinez and kicked him out of the house in 2013.

      Martinez contends that this evidence in insufficient to show that a specific

act of sexual abuse occurred more than thirty days after the first because the

descriptions and their timing are too vague. We disagree. This evidence, viewed in

the light most favorable to the jury’s verdict, allowed the jury to reasonably infer that

Martinez committed several of the acts listed in the indictment, starting in 2011 at

the earliest and continuing through at least 2013. See Machado v. State, No. 02-15-

00365-CR, 2016 WL 3962731, at *3 (Tex. App.—Fort Worth July 21, 2016, pet.

ref’d) (mem. op., not designated for publication) (“The record contains evidentiary

puzzle pieces that the jury could have carefully fit together to rationally find

beyond a reasonable doubt that appellant’s sexual abuse of [victim] occurred over


                                           7
a period of thirty days or more.”) (citing and quoting Flowers v. State, 220 S.W.3d

919, 923 (Tex. Crim. App. 2007) (“The trier of fact fits the pieces of the jigsaw

puzzle together and weighs the credibility of each piece.”)). The jury could have

rationally found that Martinez’s sexual abuse of A.D. covered a period of longer

than thirty days; the jury did not speculate in so concluding. We overrule issue one.

                                    Court Costs

      In issue two, Martinez relies on Salinas v. State, 523 S.W.3d 103, 108–11

(Tex. Crim. App. 2017) in contending that the following assessed court costs

should be deleted or reduced because they do not serve legitimate criminal justice

purposes: a $22.50 criminal records fee under Code of Criminal Procedure article

102.005(f)1); a $100 child-abuse-prevention fee under Code of Criminal Procedure

article 102.0186; and a $250 DNA testing fee under Code of Criminal Procedure

article 102.020(a)(1), (h).

      The Second Court of Appeals addressed and rejected these same arguments

in Monroe v. State, No. 02-17-00118-CR, 2018 WL 4354398, at *5–6 (Tex.

App.—Fort Worth, Sept. 13, 2018, pet. ref’d) (mem. op., not designated for

publication). In Monroe, the appellant, using the same arguments as Martinez,

challenged the constitutionality of the same three articles. See id. Rejecting these

arguments, the Second Court of Appeals found that each fee is facially

constitutional and used for legitimate criminal justice purposes. See id.; see also


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Horton v. State, 530 S.W.3d 717, 725 (Tex. App.—Fort Worth 2017, pet. ref’d)

(holding article 102.0186 to be facially constitutional); Ingram v. State, 503

S.W.3d 745, 748–50 (Tex. App.—Fort Worth 2016, pet. ref’d) (same). Because we

have not addressed this issue and because this appeal was transferred from the

Second Court of Appeals, we will apply its precedent and therefore overrule issue

two. See TEX. R. APP. P. 41.3.

                                 Incorrect Judgment

      Count Six of the indictment charged Martinez with the offense of indecency

with a child by contact, and the jury found him guilty of that offense. The

judgment on Count Six reflects a conviction for the offense of continuous sexual

abuse of a child under age 14 as a first-degree felony and section 21.02 of the

Penal Code as the statute for the offense. The State agrees that the judgment on

Count Six should reflect a conviction for the offense of indecency with a child by

contact as a second-degree felony and section 21.11 of the Penal Code as the

statute for the offense.

      We sustain issue three and modify the trial court’s judgment on Count Six to

reflect a conviction for the second-degree felony offense of indecency with a child

by contact and to reflect the statute for that offense as section 21.11 of the Penal

Code. See TEX. R. APP. P. 43.2(b); Jackson v. State, 288 S.W.3d 60, 64 (Tex.

App.—Houston [1st Dist.] 2009, pet. ref’d).


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                                   Conclusion

      We affirm the trial court’s judgment on Count One. We affirm the trial

court’s judgment on Count Six as modified.




                                                Richard Hightower
                                                Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.

Do not publish. TEX. R. APP. P. 47.2(b).




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