                                                                          PD-1352-15
                      PD-1352-15                         COURT OF CRIMINAL APPEALS
                                                                         AUSTIN, TEXAS
                                                       Transmitted 10/16/2015 3:51:31 PM
                                                         Accepted 10/16/2015 4:10:38 PM
                                                                          ABEL ACOSTA
                                                                                  CLERK
   _____________________________________________________

      IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                    AT AUSTIN, TEXAS
   _____________________________________________________

                     EDGAR JAVIER GONZALES

                                     Appellant-Petitioner

                              vs.


                      THE STATE OF TEXAS

                                   Appellee-Respondent
   _____________________________________________________

           On Petition for Discretionary Review from the
            Fourth Court of Appeals, Guadalupe County
                 Appeal Number 04-14-00100-CR
   _____________________________________________________

   APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
   _____________________________________________________

                                         GREGORY SHERWOOD
                                                            Attorney
                                                   P.O. Box 200613
                                         Austin, Texas 78720-0613
  October 16, 2015                                   (512) 484-9029
                                            State Bar No. 18254600
                                       email: gsherwood@mail.com

                                Attorney for Appellant and Petitioner
                                     EDGAR JAVIER GONZALES

Oral argument requested
                     Identity of Parties and Counsel

Edgar Javier Gonzales v. The State of Texas - seeking discretionary review
of No. 04-14-00100-CR

Edgar Javier Gonzales (Appellant):

Edgar Javier Gonzales
TDCJ # 1913487
Telford Unit
3899 Highway 98
New Boston, Texas 75570

Trial Counsel:                            Appellate Counsel:

Case J. Darwin (appointed)                Gregory Sherwood (appointed)
2206 E. Commerce                          P.O. Box 200613
San Antonio, Texas 78203                  Austin, Texas 78720-0613

The State of Texas (Appellee):

Jennifer Smith (trial)                    Edward F. Shaughnessy, III (appeal)
Jane Davis (trial)                        206 E. Locust
Assistant County Attorneys                San Antonio, Texas 78212
Guadalupe County Attorney’s Office
211 W. Court Street, Suite 362
Seguin, Texas 78155


Trial Judge:

Hon. William Old, III
25 th District Court
Guadalupe County, Texas




                                      i
                                         Table of Contents

Identity of Parties and Counsel ....................................................................... i

Table of Contents .......................................................................................... ii

Table of Authorities ...................................................................................... iv

Statement Regarding Oral Argument .......................................................... vii

Statement of the Case ................................................................................. viii

Statement of Procedural History ................................................................... ix

Grounds Presented for Review ...................................................................... 1

         Issue 1: Tex. Penal Code § 21.02(d) violates the
         statutory and state and federal constitutional
         requirements of a unanimous jury verdict. The two
         acts that the jury do not have to unanimously agree
         occurred are not manner and means of committing
         the offense of continuous abuse of a child under
         age 14. The jury can decide that up to 24 different
         acts occurred (12 jurors each deciding two different
         acts occurred), and still obtain a conviction under this statute. ........... 1

         Issue 2: Does the lesser-included instruction case
         law which requires that such instruction be submitted
         when the evidence shows that the jury could only
         convict the defendant of the lesser-included offense
         apply to continuous sexual abuse of a child under
         age 14, when the jury may convict by “picking two
         acts, any two acts,” meaning up to 24 acts can be used
         for conviction? Or should a lesser-included instruction
         be permitted in these cases because the jury can decide,
         based on its review of the evidence, either that only one
         act occurred, or that two or more acts occurred, but in a
         time period of less than 30 days? ......................................................... 1

                                                      ii
Argument Amplifying Reasons for Granting Review ................................... 1

        Issue 1 is a Recurring Issue that this Court has
        Failed to Decide in Thirteen (13) Cases. ............................................. 1

        The Jury Needs to Unanimously Agree on Which
        Two Acts Occurred Because They are not Manner
        and Means of Committing This Offense. ............................................ 4

        This Court Should Grant Issue 2 to Decide Whether
        a Lesser-Included Instruction Should be Permitted in
        Continuous Sexual Abuse Cases Without a Requirement
        that the Evidence Show Only the Lesser Offense Occurred. ............... 8

Conclusion and Prayer for Relief ................................................................. 11

Certification of Word Count Compliance .................................................... 12

Appendix

Fourth Court of Appeals’ August 26, 2015
judgment and unpublished opinion




                                                 iii
                                     Table of Authorities

Cases

Bays v. State, No. 06-10-00114-CR
(Tex. App. – Texarkana 2011, pet. ref’d)
(not designated for publication) ..................................................................... 3

Casey v. State, 349 S.W.3d 825
(Tex. App. – El Paso 2011, pet. ref’d) ........................................................... 3

Dixon v. State, 201 S.W.3d 731 (Tex. Crim. App. 2006) ...................... 4-6, 8

Fulmer v. State, 401 S.W.3d 305
(Tex. App. – San Antonio, pet. ref’d),
cert. denied, 134 S.Ct. 436 (2013) ............................................................. 4, 6

Henry v. State, No. 08-11-00221-CR
(Tex. App. – El Paso 2013, pet. ref’d)
(not designated for publication) ..................................................................... 3

Henshaw v. State, No. 05-10-00104-CR
(Tex. App. – Dallas 2011, pet. ref’d)
(not designated for publication) ..................................................................... 3

Hernandez v. State, No. 05-10-00493-CR
(Tex. App. – Dallas 2011, pet. ref’d)
(not designated for publication) ..................................................................... 3

Jacobsen v. State, 325 S.W.3d 733
(Tex. App. – Austin 2010, no pet.) ............................................................ 5, 7

Kennedy v. State, 385 S.W.3d 729
(Tex. App. – Amarillo 2012, pet. ref’d),
cert. denied, 134 S.Ct. 681 (2013) ............................................................. 4, 7




                                                  iv
Lewis v. State, No. 02-10-00004-CR
(Tex. App. – Fort Worth 2011, pet. ref’d)
(not designated for publication) ..................................................................... 3

Martin v. State, 335 S.W.3d 867
(Tex. App. – Austin 2011, pet. ref’d),
cert. denied, 133 S. Ct. 645 (Nov. 26, 2012),
reh. denied, 133 S.Ct. 1000 (Jan. 22, 2013) ............................................... 3, 7

Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) ................................. 5

Ramirez v. State, No. 05-10-00139-CR
(Tex. App. – Dallas 2011, pet. ref’d)
(not designated for publication) ..................................................................... 3

Reckart v. State, 323 S.W.3d 588
(Tex. App. – Corpus Christi 2010, pet. ref’d) ........................................ 3, 5, 7

Render v. State, 316 S.W.3d 846
(Tex. App. – Dallas 2010, pet. ref’d),
cert. denied, 131 S.Ct. 1533 (U.S. 2011) ............................................... 3, 5, 7

State v. Espinoza, No. 05-09-01260-CR
(Tex. App. – Dallas 2010, pet. ref’d)
(not designated for publication) ..................................................................... 2

State v. Rabago, 81 P.3d 1151 (Haw. 2003) .............................................. 6, 7

Constitutional Provision, Statutes and Rules

Tex. Penal Code § 20A.03 ............................................................................. 2

Tex. Penal Code § 21.02 ................................................................................ 4

Tex. Penal Code § 21.02(b) ........................................................................... 1

Tex. Penal Code § 21.02(d) ........................................................... viii, 1, 2, 4



                                                    v
Tex. Penal Code § 25.11 ................................................................................ 2

Tex. R. App. P. 9.4(i)(1) .............................................................................. 12

Tex. R. App. P. 66.3(b) .................................................................................. 4

Tex. R. App. P. 68.2(a) ................................................................................. ix

U.S. Const. Amend. VI .................................................................................. 6

Other Authority

Note, Jury Unanimity and the Problem with Specificity:
Trying to Understand What Jurors Must Agree About by
Examining the Problem of Prosecuting Child Molesters,
91 Tex. L. Rev. 1203 (April 2013) ................................................................ 7




                                                    vi
     _____________________________________________________

        IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                      AT AUSTIN, TEXAS
     _____________________________________________________

                        EDGAR JAVIER GONZALES

                                            Appellant-Petitioner

                                     vs.


                          THE STATE OF TEXAS

                                     Appellee-Respondent
     _____________________________________________________

             On Petition for Discretionary Review from the
              Fourth Court of Appeals, Guadalupe County
                   Appeal Number 04-14-00100-CR
     _____________________________________________________

     APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
     _____________________________________________________

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

      NOW COMES appellant and petitioner EDGAR JAVIER

GONZALES, who files his petition for discretionary review, respectfully

stating as follows:

                      Statement Regarding Oral Argument

      Petitioner requests oral argument.

                                     vii
                            Statement of the Case

      Edgar Javier Gonzales seeks discretionary review of the unpublished

opinion and judgment of the Fourth Court of Appeals, attached as an

appendix, which affirmed his jury conviction for one count of continuous

sexual assault of a child younger than age 14. Slip op. at 1. The jury heard

punishment evidence and rendered a punishment verdict of life

imprisonment and a $10,000 fine. Id.

      The first issue presented in this petition is whether Tex. Penal Code §

21.02(d), the continuous sexual abuse of a child under age 14 statute,

violates statutory and constitutional requirements of a unanimous jury

verdict by permitting the jury to convict by deciding that the defendant

committed any two acts which occurred 30 days or more apart, without

requiring the jury to unanimously agree on which two acts occurred. The

Fourth Court of Appeals, following prior appellate opinions, held that this

statute did not violate statutory and constitutional jury unanimity

requirements. Slip op. at 14-16.

      The second issue presented in this petition is whether the trial court

erred in failing to include petitioner Gonzales’ requested lesser-included

offense instruction for aggravated sexual assault of a child. The Fourth



                                      viii
Court of Appeals held that the instruction did not need to be included

because the evidence did not show that the jury could convict petitioner

Gonzales of aggravated sexual assault of a child only (by finding that only

one act occurred) instead of finding him guilty of continuous sexual abuse of

a child under age 14, which requires a showing that two or more acts

occurred over a 30 day or more time period, with the jury not required to

agree on which two acts occurred. Slip op. at 3-6.

                       Statement of Procedural History

      The Fourth Court of Appeals affirmed the conviction in its August 26,

2015 judgment and unpublished opinion. Petitioner timely filed his motion

for rehearing on September 10, 2015, which was overruled on September 23,

2015, making this petition for discretionary review due by October 23, 2015.

Tex. R. App. P. 68.2(a).




                                      ix
                         Grounds Presented for Review

      Issue 1: Tex. Penal Code § 21.02(d) violates the statutory and
      state and federal constitutional requirements of a unanimous
      jury verdict. The two acts that the jury do not have to
      unanimously agree occurred are not manner and means of
      committing the offense of continuous abuse of a child under age
      14. The jury can decide that up to 24 different acts occurred
      (12 jurors each deciding two different acts occurred), and still
      obtain a conviction under this statute.

      Issue 2: Does the lesser-included instruction case law which
      requires that such instruction be submitted when the evidence
      shows that the jury could only convict the defendant of the
      lesser-included offense apply to continuous sexual abuse of a
      child under age 14, when the jury may convict by “picking two
      acts, any two acts,” meaning up to 24 acts can be used for
      conviction? Or should a lesser-included instruction be
      permitted in these cases because the jury can decide, based on
      its review of the evidence, either that only one act occurred, or
      that two or more acts occurred, but in a time period of less than
      30 days?

             Argument Amplifying Reasons for Granting Review

                   Issue 1 is a Recurring Issue that this Court
                  has Failed to Decide in Thirteen (13) Cases.

      A person commits the offense of continuous abuse of a child under

age 14 if during a period of 30 days or more in duration, a person who is age

17 or older commits two or more acts of sexual abuse against one or more

victims who are under the age of 14. Tex. Penal Code § 21.02(b).

Subsection (d) states, “If a jury is the trier of fact, members of the jury are



                                        1
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. The jury must agree unanimously that the defendant, during a

period that is 30 or more days in duration, committed two or more acts of

sexual abuse.” Tex. Penal Code § 21.02(d). Since 2007, the legislature has

enacted two more continuous offense statutes with similar language, the

continuous violence against the family statute, Tex. Penal Code § 25.11,

enacted in the 2009 regular legislative session, and the continuous

trafficking of persons statute, Tex. Penal Code § 20A.03, enacted in the

2011 regular session.

      Mr. Gonzales raised the issue of the constitutionality of this statute in

¶ 2 of his motion for new trial. Clerk’s Record (“CR”) 273-277. This court

has not yet ruled upon the constitutionality of Tex. Penal Code § 21.02.

However, this court was presented with this issue in the following thirteen

(13) cases, all of which were denied review:

Date of refusal of
discretionary review      Case

August 25, 2010           State v. Espinoza, No. 05-09-01260-CR (Tex. App.
                          – Dallas 2010, pet. ref’d) (not designated for
                          publication)




                                       2
September 15, 2010   Render v. State, 316 S.W.3d 846 (Tex. App. –
                     Dallas 2010, pet. ref’d), cert. denied, 131 S.Ct.
                     1533 (2011)

February 9, 2011     Reckart v. State, 323 S.W.3d 588 (Tex. App. –
                     Corpus Christi 2010, pet. ref’d)

September 14, 2011   Henshaw v. State, No. 05-10-00104-CR (Tex. App.
                     – Dallas 2011, pet. ref’d) (not designated for
                     publication)

October 5, 2011      Martin v. State, 335 S.W.3d 867 (Tex. App. –
                     Austin 2011, pet. ref’d), cert. denied, 133 S. Ct.
                     645 (Nov. 26, 2012), reh. denied, 133 S.Ct. 1000
                     (Jan. 22, 2013)

October 19, 2011     Ramirez v. State, No. 05-10-00139-CR (Tex. App.
                     – Dallas 2011, pet. ref’d) (not designated for
                     publication)

November 16, 2011    Lewis v. State, No. 02-10-00004-CR (Tex. App. –
                     Fort Worth 2011, pet. ref’d) (not designated for
                     publication)

January 25, 2012     Casey v. State, 349 S.W.3d 825 (Tex. App. – El
                     Paso 2011, pet. ref’d), and

                     Hernandez v. State, No. 05-10-00493-CR (Tex.
                     App. – Dallas 2011, pet. ref’d) (not designated for
                     publication)

March 28, 2012       Bays v. State, No. 06-10-00114-CR (Tex. App. –
                     Texarkana 2011, pet. ref’d) (not designated for
                     publication) (appellant’s PDR refused)

March 27, 2013       Henry v. State, No. 08-11-00221-CR (Tex. App. –
                     El Paso 2013, pet. ref’d) (not designated for
                     publication)


                                 3
April 17, 2013              Kennedy v. State, 385 S.W.3d 729 (Tex. App. –
                            Amarillo 2012, pet. ref’d), cert. denied, 134 S.Ct.
                            681 (2013)

May 15, 2013                Fulmer v. State, 401 S.W.3d 305 (Tex. App. – San
                            Antonio, pet. ref’d), cert. denied, 134 S.Ct. 436
                            (2013).

       Whether Tex. Penal Code § 21.02 violates the statutory and

constitutional requirements of a unanimous jury verdict is an issue which is

recurring in the appellate courts of this state. This court should exercise its

power of discretionary review under Tex. R. App. P. 66.3(b) to decide this

important, recurring issue.

   The Jury Needs to Unanimously Agree on Which Two Acts Occurred
   Because They are not Manner and Means of Committing This Offense.

       The Fourth Court’s reasoning in this case, also stated in other cases

which have upheld the constitutionality of Tex. Penal Code § 21.02(d), that

the statute does not violate jury unanimity because the two acts to be decided

are merely manner and means of committing the offense, and not elements

of the offense, is incorrect. If this is true, the jury can find that up to 24 acts

occurred (12 jurors times 2 different acts per juror) and still obtain a

conviction under this statute.

       Judge Cochran’s suggestion in her concurring opinion in Dixon v.

State, 201 S.W.3d 731 (Tex. Crim. App. 2006), that the legislature should


                                         4
enact a statute which would criminalize a continuing course of sexual

misconduct, yet still “preserve our bedrock criminal-procedure principles of

double jeopardy, jury unanimity, due-process notice, grand-jury indictments

and election law[,]” id., at 737 (Cochran, J., concurring) has not been

complied with. This statute eliminates any requirement of jury unanimity

because the appellate courts have misinterpreted the two acts to be proven as

manner and means of committing the offense that do not require jury

unanimity. Slip op. at 5. See also, Render, 316 S.W.3d at 856-857, and

Reckart, 323 S.W.3d at 600-610, which both distinguish this court’s opinion

in Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) to reach this result,

and Jacobsen v. State, 325 S.W.3d 733, 737 (Tex. App. – Austin 2010, no

pet.), which states that the “two or more” acts to be proven are merely

“manner and means” of committing the offense. Under this reasoning, a

jury may find someone guilty of continuous abuse simply by finding that,

“We heard evidence of several acts, so the defendant must have committed

two of them over a period of 30 days or more,” with each juror disagreeing

on which two acts occurred.




                                       5
      Instead of preserving jury unanimity, this statute does precisely what

the dissenting opinion in Dixon, an aggravated sexual assault of a child case

involving possibly 100 different acts, warned against:

      Further, with one hundred undifferentiated incidents to consider
      as evidence of one charged offense, there is a distinct danger
      that the jurors will not only fail to reach a unanimous verdict in
      convicting the defendant, but that they could convict on as
      many as twelve different incidents. Whatever the jeopardy
      implications, clearly such a verdict would meet neither the
      unanimous jury guarantee of the Texas Constitution [footnote
      omitted], nor the “substantial majority” requirement of the
      Sixth Amendment. [Footnote omitted.] Error of this kind
      vitiates the entire jury verdict, calling into question whether the
      appellant received the jury trial guaranteed by the Sixth
      Amendment at all.

Dixon, 201 S.W.3d at 738-39 (Price, J., dissenting, joined by Meyers and

Johnson, JJ.) (bracketing added).

      The reasoning of the Supreme Court of Hawai’i in State v. Rabago, 81

P.3d 1151 (Haw. 2003), which struck down that state’s similar statute, is

more persuasive and should be followed by this court, because the Hawai’i

court recognized under that state’s case law that the underlying acts are

separate and distinct offenses. Id., at 1168. Several intermediate courts in

Texas, including this one, have considered and disagreed with the reasoning

of the Supreme Court of Hawaii in State v. Rabago, 81 P.3d 1151, 1168

(2003), which struck down that state’s similar statute. See Fulmer, 401


                                       6
S.W.3d at 312, n. 1; Martin, 335 S.W.3d at 873; and Kennedy, 385 S.W.3d

at 732, n. 6. The Rabago holding is more persuasive, because it recognizes

that the underlying acts are separate and distinct offenses. Id., 81 P.3d at

1168.1 The Hawai’i Supreme Court’s holding conflicts with the Texas

decisions that hold that the two underlying acts of abuse are merely “manner

and means” of committing the offense. See also Jacobsen v. State, 325

S.W.3d 733, 737 (Tex. App. – Austin 2010, no pet.), which states that the

“two or more” acts to be proven are merely “manner and means” of

committing the offense; Render v. State,316 S.W.3d 846, 856-857 (Tex.

App. – Dallas 2010, pet. ref’d), cert. denied, 131 S.Ct. 1533 (2011), and

Reckart v. State, 323 S.W.3d 588, 600-601 (Tex. App. – Corpus Christi-

Edinburg 2010, pet. ref’d).




      1
             Rabago was decided under Hawai’i state law, and was later repealed by
             the Hawai’i Legislature which amended the state constitution, which was
             then approved by the voters, and the legsilature then enacted another
             continuous abuse statute. See Note, Jury Unanimity and the Problem with
             Specificity: Trying to Understand What Jurors Must Agree About by
             Examining the Problem of Prosecuting Child Molesters, 91 Tex. L. Rev.
             1203, 1209 (April 2013). However, any conflict in reasoning on whether
             a conviction for this type of statute requires jury unanimity for the
             underlying acts (Hawai’i before amendment of its state constitution), or
             does not (Texas), would also apply to a constitutional analysis on whether
             the Texas statute violates either the requirements of due process, due
             course of law, or a unanimous jury verdict by permitting jurors to find
             someone “probably guilty” of continuous abuse since the jury does not
             have to unanimously agree which two acts occurred.

                                          7
      As noted above, the three dissenting judges on this court in Dixon v.

State, supra, predicted that the legislature would pass a statute that would

allow jurors to convict on as many as 12 different acts. Id., 201 S.W.3d at

738-739 (Price, J., dissenting, joined by Meyers and Johnson, JJ.). Actually,

the legislature has passed a statute which doubles that number, for 24

different acts may be found by the 12 jurors to have occurred to secure a

conviction under the continuous abuse statute. This court should grant

review to decide this important, recurring question of whether the

continuous abuse statute violates the constitutional and statutory

requirements for jury unanimity.

             This Court Should Grant Issue 2 to Decide Whether
              a Lesser-Included Instruction Should be Permitted
         in Continuous Sexual Abuse Cases Without a Requirement
         that the Evidence Show Only the Lesser Offense Occurred.

      At the charge conference, petitioner Gonzales requested a lesser-

included offense charge instruction asking the jury to find appellant guilty of

aggravated sexual assault of a child if the jury found that appellant

“committed multiple acts within 30 days or only one act to wit: 1 st day of

November, 2007 through the 16 th day of November, 2009. . . .” CR 221, full

requested charge at CR 221-223. The following discussion took place

concerning this requested charge:


                                       8
       THE COURT:         It’s my understanding, from your prior
                          argument, when we were in a more informal
                          setting was that you were objecting to the
                          inclusion of a lesser included offense, not
                          based on the fact that the alleged acts were
                          not – lesser included offenses, they are, but
                          that there was no evidence presented by the
                          Defendant that there was any time period
                          shorter than one month.

       [Prosecutor]:      That’s correct, your Honor.

RR vol. 10, p. 130, l. 3-12. After discussion of other proposed changes to

the charge, the trial court denied appellant’s requests to the charge. RR vol.

10, p. 132, l. 9-15.

       The Fourth Court discussed this issue at pages 3-6 of its attached slip

opinion, agreeing that aggravated sexual assault of a child (which only

requires one act) is a lesser-included offense of continuous sexual abuse of a

child (which requires more than one act). Slip op., at 4. However, the

appellate court held that the instruction was not required because petitioner’s

argument that the jury could find that only one act occurred was based on a

weighing of credibility and conflicts in the testimony, which cannot be

considered in deciding whether a lesser-included offense instruction is

required. Slip op., at 5. The court concluded that since the child testified

about multiple acts from 2007 to 2009, and “Gonzales . . . completely denied



                                       9
that he was ever alone with the child, thereby ruling out any chance he

sexually assaulted her[,] . . . there is no evidence that would permit the jury

to rationally acquit Gonzales of the greater offense and still convict him of

the lesser.” Slip op., at 6.

       Under this reasoning, the only time a lesser-included offense

instruction for aggravated sexual assault of a child would be required in a

continuous sexual abuse prosecution would be when the defendant testified,

“Yes, I sexually assaulted the child, but only once,” or “I assaulted the child

two or more times, but the time period of these events was less than 30

days.” The likelihood of that ever happening is slim to none. Yet, the jury

may convict a defendant of continuous sexual abuse by finding that up to 24

acts occurred, since the jury does not need to agree on which two acts

occurred, and there are 12 jurors in a felony trial. If this is permissible, it

seems that a lesser-included offense instruction requested by a defendant

should be included irrespective of whether the evidence shows that either

only one act occurred, or that multiple acts occurred in a time frame of less

than 30 days.

       Because of the unique nature of the proof needed for a prosecution for

continuous sexual abuse of a child under age 14, which permits up to 24 acts



                                        10
to be found by the 12 jurors for a conviction, and because it is highly

unlikely that a defendant would ever testify either that only one act occurred,

or that multiple acts occurred in a time period of less than 30 days, this court

should consider whether a lesser-included offense instruction for aggravated

sexual assault of a child should be included in the jury charge when

requested by a defendant, irrespective of whether there is any evidence that a

defendant committed only the lesser offense.

                       Conclusion and Prayer for Relief

      WHEREFORE, PREMISES CONSIDERED, appellant and petitioner

EDGAR JAVIER GONZALES respectfully prays that this court grant this

petition for discretionary review, set this cause for oral argument and for

briefing on the merits, and that the August 26, 2015 opinion of the Fourth

Court of Appeals affirming the conviction for continuous abuse of a child

under age 14, be reversed and a judgment of acquittal rendered if the first

issue is granted. If the first issue is denied and the second issue is granted

concerning the failure to include a lesser-included offense instruction,

petitioner Gonzales asks this court to reverse and remand for a new trial.




                                       11
                                                          Respectfully submitted,

                                                   /s/   Gregory Sherwood
                                                    GREGORY SHERWOOD
                                                                  ATTORNEY
                                                              P.O. Box 200613
                                                    Austin, Texas 78720-0613
                                                                (512) 484-9029
                                                       State Bar No. 18254600
                                                  email: gsherwood@mail.com

                                           Attorney for Appellant and Petitioner
                                                EDGAR JAVIER GONZALES

                            Certificate of Service

             I hereby certify that a true copy of this document was served by
email on October 16, 2015 upon the attorney representing appellee The State
of Texas, Edward F. Shaughnessy, III, 206 E. Locust, San Antonio, Texas
78212 at his email address: Shaughnessy727@gmail.com, and upon the
Office of the State Prosecuting Attorney, P.O. Box 14306, Austin, Texas
78711at its email address: information@spa.texas.gov.

                                                   /s/   Gregory Sherwood
                  Certification of Word Count Compliance

       According to the WordPerfect program used to create this document,
there are 2,502 words in this petition for discretionary review, excluding the
portions listed in Tex. R. App. P. 9.4(i)(1).

                                                   /s/   Gregory Sherwood



                                      12
   APPENDIX - FOURTH COURT OF
APPEALS’ AUGUST 26, 2015 JUDGMENT
    AND UNPUBLISHED OPINION
                         Fourth Court of Appeals
                                San Antonio, Texas

                                    JUDGMENT
                                  No. 04-14-00100-CR

                                Edgar Javier GONZALES,
                                        Appellant

                                            v.

                                  The STATE of Texas,
                                        Appellee

              From the 25th Judicial District Court, Guadalupe County, Texas
                               Trial Court No. 10-2321-CR
                       The Honorable William Old, Judge Presiding

     BEFORE JUSTICE BARNARD, JUSTICE ALVAREZ, AND JUSTICE PULLIAM

     In accordance with this court’s opinion of this date, the trial court’s judgment is
AFFIRMED.

      SIGNED August 26, 2015.


                                             _____________________________
                                             Marialyn Barnard, Justice
                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-14-00100-CR

                                      Edgar Javier GONZALES,
                                              Appellant

                                                  v.

                                         The STATE of Texas,
                                               Appellee

                   From the 25th Judicial District Court, Guadalupe County, Texas
                                    Trial Court No. 10-2321-CR
                            The Honorable William Old, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice
                  Jason Pulliam, Justice

Delivered and Filed: August 26, 2015

AFFIRMED

           A jury convicted appellant Edgar Javier Gonzales of continuous sexual abuse of a child

under the age of fourteen. The trial court sentenced Gonzales to life in prison and imposed a

$10,000.00 fine. On appeal, Gonzales contends: (1) the trial court erred in refusing his request for

a lesser-included offense instruction; (2) the trial court erred in failing to instruct the jury that it

could only consider acts that occurred on or after the effective date of the continuous sexual abuse

of a child statute, i.e., September 1, 2007, and further erred by denying his motion for new trial

based on this error; and (3) section 21.02 of the Texas Penal Code — the continuous sexual abuse
                                                                                                       04-14-00100-CR


of a child statute — is unconstitutional because it permits the jury to convict without agreeing upon

the specific acts committed by the defendant. We affirm the trial court’s judgment.

                                                    BACKGROUND

           In 2009, approximately five years after Gonzales married her mother, ten-year-old L.W.1

told her Sunday school teacher that Gonzales, her stepfather, had touched her vagina several times

and put his private parts in her mouth. L.W. repeated her allegations to a sexual assault nurse

examiner (SANE). When she spoke to the SANE, L.W. added that Gonzales had been touching

her inappropriately since she was in the first grade, and she told an interviewer with the Child

Advocacy Center that it began when she was in kindergarten — she subsequently denied telling

the CAC interviewer that the inappropriate touching began in kindergarten. There were other

inconsistencies in L.W.’s statements. At trial, L.W. testified about several sexual acts Gonzales

performed upon her when she was ten-years-old. According to L.W., the acts occurred in the

family home and adjoining garage. L.W. also testified appellant touched her private parts “like

once a week” from 2007 to 2009.

           Gonzales testified on his own behalf and denied ever being alone with L.W., much less

touching her inappropriately. He also presented the testimony of a family therapist who saw L.W.

and other family members from December 2008 to April 2009. The therapist stated L.W. never

made a claim of sexual abuse during family therapy.

           Ultimately, the jury found Gonzales guilty of continuous sexual abuse of a child under the

age of fourteen. The trial court sentenced Gonzales to life in prison and imposed a $10,000.00

fine. Gonzales filed a motion for new trial, which was denied by written order. Thereafter, he

perfected this appeal.



1
    L.W. was ten-years-old when she made her initial outcry. At the time of trial, she was fifteen-years-old.

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                                             ANALYSIS

       As set out above, Gonzales raises three issues on appeal — two issues relating to alleged

charge error, and one issue relating to the alleged unconstitutionality of section 21.02 of the Texas

Penal Code, which is the provision of the Penal Code Gonzales was alleged to have violated. We

address each issue in turn.

                               Lesser-Included Offense Instruction

       In his first issue, Gonzales contends the trial court erroneously denied his request for a

lesser-included offense instruction. Gonzales requested the trial court instruct the jury it could

find Gonzales guilty of the offense of aggravated sexual assault of a child. Gonzales claims, based

on the evidence, the jury could have found that only one prohibited act occurred or that two or

more acts occurred within the same thirty-day period. We disagree.

                                      Framework for Review

       Whether a defendant is entitled to a lesser-included offense instruction requires a two-step

analysis. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011) (citing Hall v. State, 225

S.W.3d 524, 528 (Tex. Crim. App. 2007)); Zapata v. State, 449 S.W.3d 220, 224 (Tex. App.—San

Antonio 2014, no pet.). First, we must determine whether the lesser-included offense is included

in the proof necessary to establish the charged offense. Goad, 354 S.W.3d at 446; Zapata, 449

S.W.3d at 224. To make this determination, a court must compare the elements alleged in the

indictment with the elements of the potential lesser offense. Zapata, 449 S.W.3d at 224 (citing

Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012)). As stated in the Texas Code of

Criminal Procedure, an offense is a lesser-included offense if “it is established by proof of the

same or less than all the facts required to establish the commission of the charged offense. TEX.

CODE CRIM. PROC. ANN. art. 37.09(1) (West 2006). In other words, an offense is a lesser-included



                                                -3-
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offense of another offense if the indictment for the greater offense alleges all of the elements of

the lesser offense. Zapata, 449 S.W.3d at 224 (citing Cavazos, 382 S.W.3d at 382).

                                            Application

       Here, the indictment tracked section 21.02(b) of the Texas Penal Code, alleging Gonzales,

“during a period that was more than 30 days in duration to-wit: on or about the 1st day of

November, 2007, through the 16th day of November 2009 . . . did then and there commit two or

more acts of sexual abuse against . . . a child younger than 14 years of age, and the defendant was

17 years of age or older. . . .” See TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2014).

Subsection (c) of section 21.02 specifically states that an “act of sexual abuse” includes aggravated

sexual assault under section 22.021 of the Penal Code. See id. § 22.021. Thus, aggravated sexual

assault of a child — an offense listed under subsection (c) — is always a lesser-included offense

of an offense alleged under subsection (b). Soliz v. State, 353 S.W.3d 850, 854 (Tex. Crim. App.

2011); Price v. State, 413 S.W.3d 158, 162 (Tex. App.—Beaumont 2013), aff’d, 434 S.W.3d 601

(Tex. Crim. App. 2014). As the court recognized in Price, “it appears the Legislature did not

intend to allow a defendant convicted of continuous sexual abuse to also be convicted for the

aggravated sexual assault of the same child if the aggravated sexual assault at issue and the

continuous sexual abuse both occurred within the same time periods.” 413 S.W.3d at 162 (citing

TEX. PENAL CODE ANN. § 21.02(c)(4)). Accordingly, we hold the first step of the test is satisfied.

We now must decide whether the evidence supports the requested lesser-included offense

instruction.

       The evidence supports an instruction on a lesser-included offense if there is some evidence

from which a rational jury could conclude the defendant was guilty only of the lesser offense. See

Goad, 354 S.W.3d at 446; Zapata, 449 S.W.3d at 224. Thus, in this case, we must determine if



                                                -4-
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there is some evidence from which the jury could have concluded that Gonzales was guilty only

of aggravated sexual assault of a child. See Goad, 354 S.W.3d at 446; Zapata, 449 S.W.3d at 224.

       “[T]here must be some evidence directly germane to the lesser-included offense for the

finder of fact to consider before an instruction on a lesser-included offense is warranted.” Goad,

354 S.W.3d at 446 (quoting Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003)). We

must consider all of the evidence admitted at trial, not just that presented by the defendant. Id.

The evidence must establish the lesser-included offense is a valid, rational alternative to the

charged offense. Id.; Zapata, 449 S.W.3d at 225. In other words, there must be some evidence

that would permit the jury to rationally acquit the defendant of the greater offense and still convict

him of the lesser offense. Sorto v. State, 173 S.W.3d 469, 476 (Tex. Crim. App. 2005). Anything

more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Goad, 354

S.W.3d at 446. However, we are not permitted to consider the credibility of the evidence and

whether it conflicts with other evidence or is controverted. Id. at 446–47.

       Gonzales contends the evidence supports his requested lesser-included offense instruction

because “the jury could have decided that the only acts of sexual abuse occurred in April 2009,

shortly before the child’s outcry, and disbelieved the child’s other testimony that other acts

occurred at earlier points in time, thus negating the ‘30 days’ or more duration element required”

for the offense, or “the jury could have believed that only one act occurred, negating the ‘two or

more’ acts element” of the offense.” We disagree.

       Gonzales’s argument is contingent upon L.W.’s credibility and certain conflicts in her

testimony. However, as noted above, the court is not permitted to consider the credibility of the

evidence and whether it conflicts with other evidence or is controverted. Id. The evidence shows

that at age ten, L.W. told a Sunday school teacher and a SANE that Gonzales sexually abused her

on several occasions. When she spoke to the SANE, L.W. specifically stated Gonzales had been
                                                 -5-
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sexually abusing her since she was in the first grade — a period of several years. L.W. specifically

testified appellant sexually abused her approximately once a week from 2007 to 2009. Gonzales,

on the other hand completely denied he was ever alone with L.W., thereby ruling out any chance

he sexually assaulted her. Thus, there is no evidence in the record — not even a scintilla — that

is directly germane to the lesser-included offense so as to warrant the requested instruction. Id. at

446. In other words, there is no evidence that would permit the jury to rationally acquit Gonzales

of the greater offense and still convict him of the lesser. See Sorto, 173 S.W.3d at 476. The lesser-

included offense was not a valid, rational alternative to the charged offense. See id. Accordingly,

we conclude that the trial court did not err in denying Gonzales’s requested lesser-included offense

instruction and overrule his first issue.

                              Limiting Instruction — Date of Offense

        In his second and third issues, Gonzales contends that because the jury charge advised

jurors that the State was not required to prove the offense was committed on the dates alleged in

the indictment, but had to prove only that it was committed prior to the time the indictment was

presented, the trial court erred in failing to provide an additional instruction that in order to convict

him of the charged offense, it could only consider acts that occurred on or after September 1, 2007,

the effective date of the continuous sexual abuse of a child statute. Thus, the error asserted by

Gonzales is not based on what the charge said, but what it failed to say. Gonzales claims the

alleged failure to provide the instruction resulted in egregious harm because L.W. testified that

some prohibited acts occurred prior to the effective date of the statute, thereby allowing the jury

to convict him based on acts occurring before the effective date.

                                            Standard of Review

        When reviewing alleged jury charge error, we must first determine if there was error, and

then, if we decide there was error, we must determine whether the error caused sufficient harm to
                                                   -6-
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warrant a reversal. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Ochoa v. State,

119 S.W.3d 825, 828 (Tex. App.—San Antonio 2003, no pet.). The amount of harm necessary to

warrant a reversal depends on whether the appellant objected to the jury charge. Reeves v. State,

420 S.W.3d 812, 816 (Tex. Crim. App. 2013) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1985)); Ngo, 175 S.W.3d at 743; Ochoa, 119 S.W.3d at 828. If the appellant objected

to the complained portion of the charge, then the record need only show he suffered some harm as

a result of the error to obtain a reversal. Reeves, 420 S.W.3d at 816; Ngo, 175 S.W.3d at 743;

Ochoa, 119 S.W.3d at 828. On the other hand, if the appellant failed to object to the complained

of portion of the charge, as in this case, he must show he suffered egregious harm to be entitled to

a reversal. See Reeves, 420 S.W.3d at 816; Ngo, 175 S.W.3d at 743; Ochoa, 119 S.W.3d at 828.

                                            Application

       A person commits the offense of continuous sexual abuse of a child under the age of

fourteen if, during a time period of thirty or more days, that person commits two or more acts of

sexual abuse against a child. TEX. PENAL CODE ANN. § 21.02(b)(1). This provision in the Penal

Code became effective September 1, 2007, and does not apply to an offense committed before that

date. Act of May 18, 2007, 80th Leg., R.S., ch. 593, §§ 1.17, 4.01(a), 2007 Tex. Gen. Laws 1120,

1127, 1148; Martin v. State, 335 S.W.3d 867, 873 (Tex. App.—Austin 2011, pet. ref’d). An

offense is committed before the effective date of the statute if any element of the offense occurs

before that date. Id. A jury charge is erroneous if it presents the jury with a much broader

chronological perimeter than is permitted by law. Taylor v. State, 332 S.W.3d 483, 488 (Tex.

Crim. App. 2011).

       Here, based on the indictment, the State had to prove the offense was committed between

November 1, 2007, and November 16, 2009. Gonzales points out that the paragraph set out below,

which was included in the jury charge, instructed the jury that it could consider acts that occurred
                                                -7-
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before September 1, 2007, and therefore, the trial court should have included an additional

instruction advising the jury that it could only consider acts committed on or after September 1,

2007. We agree, as does the State.

                                 Dates Alleged in the Indictment

               The State is not bound by the specific date in the indictment that the
               offense is alleged to have been committed. A conviction may be
               had upon proof that the offense, if any, was committed at any time
               prior to the filing of the indictment that is within the period of
               limitations. The indictment in the instant case was filed November
               the 5th, 2010. There is no statute of limitations for the offense of
               continuous sexual abuse. Therefore, proof of the offense, if any,
               occurred prior to the filing of the indictment on November 5th, 2010,
               is sufficient.

This provision is similar to those that appear in most jury charges. It is based on longstanding law

that generally, the State is not required to prove the exact dates alleged in the indictment, but need

only prove the offense occurred within the period covered by the applicable statute of limitations.

See, e.g., Klein v. State, 273 S.W.3d 297, 304 n.5 (Tex. Crim. App. 2008); Wright v. State, 28

S.W.3d 526, 532 (Tex. Crim. App. 2000); Garcia v. State, 981 S.W.2d 683, 685–86 (Tex. Crim.

App. 1998). Thus, in this case, the State was not required to prove Gonzales began sexually

abusing L.W. on November 1, 2007, and ceased such actions on November 16, 2007. However,

because time is a material element of continuous sexual abuse of a child — two or more acts during

a period of thirty days or more — the State had to prove beyond a reasonable doubt the requisite

thirty day or more period. See Garcia, 981 S.W.2d at 685–86. Moreover, given the effective date

of the statute, that thirty day or more period was limited to periods after the effective date of the

statute, i.e., September 1, 2007. See Taylor, 332 S.W.3d at 488. Despite this, the trial court

effectively instructed the jury that it could convict Gonzales upon proof that he committed two or

more of the prohibited acts of sexual abuse within a thirty day or more time period before



                                                 -8-
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September 1, 2007 — as long as the acts were committed before the indictment was filed on

November 5, 2010.

       Admittedly, the application paragraph instructed the jury that it could not find Gonzales

guilty unless it found beyond a reasonable doubt that he:

       . . . during a period that was more than 30 days in duration to-wit: on or about the
       first day of November 2007, through the 16th day November 2009 and before the
       presentment of the indictment . . . did then and there commit two or more acts of
       sexual abuse against [L.W.], a child younger than 14 years of age, and the
       Defendant was 17 years of age or older . . .

(emphasis added). However, this portion of the charge does not instruct the jury that it cannot

consider acts before September 1, 2007, but merely advises the jury as to when the acts were

allegedly committed. L.W., however, testified that certain acts took place outside this time period.

Moreover, as recognized by the court in Martin v. State, we must assume the jurors read the charge

as a whole, taking the general instruction into account when reading the application portion, see

Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim. App. 1996), and thereby concluded a conviction

was authorized upon proof that Gonzales committed two or more of the prohibited acts of sexual

abuse within a thirty day or more time period before or after September 1, 2007 — as long they

were committed before the indictment was filed on November 5, 2010. See 335 S.W.3d 867, 874

(Tex. App.—Austin 2011, pet. ref’d), cert. denied, 133 S.Ct. 645 (2012).

       In Martin, the defendant, like Gonzales, was charged with continuous sexual abuse of a

child. Id. at 871. The jury charge contained a general instruction regarding conviction based on

acts committed before the date of the indictment — an instruction similar to the one in this case.

Id. at 873. And, just as in this case, the application paragraph instructed the jury it could not

convict unless it found the offenses were committed between dates occurring during a time period

after September 1, 2007. Id. at 874. The Martin court held, despite the application paragraph,

there was nothing in the court’s charge that limited the instruction regarding the nonbinding nature
                                                -9-
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of the dates alleged to specifically require the jurors to find that the period of continuous sexual

abuse began on or after September 1, 2007, or that otherwise directed the jurors not to convict

based on a finding of sexually abusive conduct prior to September 1, 2007. Id. at 874–75.

According to the court, without an instruction advising the jurors that they could not consider

conduct prior to the enactment of the statute on September 1, 2007, the jury was presented with a

much broader chronological perimeter than permitted by the law, allowing the defendant to be

convicted of an ex post facto law in violation of the state and federal constitutions by punishing

him for conduct that was innocent when committed. Id. at 876 (citing Collins v. Youngblood, 497

U.S. 37, 42–44 (1990); Rodriguez v. State, 93 S.W.3d 60, 65 (Tex. Crim. App. 2002)).

       Following Martin, courts of appeals have uniformly held that even when the application

paragraph limits conviction to a proper time period, the charge is erroneous unless the instruction

on the nonbinding nature of the dates alleged in the indictment is somehow specifically limited to

require jurors to convict based only on acts of sexual abuse that took place on or after September

1, 2007. See, e.g., Whitington v. State, No. 08-13-00102-CR, 2015 WL 3653326, at * (Tex. App.—

El Paso Apr. 24, 2015, no pet.) (not designated for publication); Gomez v. State, 459 S.W.3d 651,

660 (Tex. App.—Tyler 2015, pet. ref’d); Flores v. State, No. 13-12-00606-CR, 2014 WL 1514129,

at *5 (Tex. App.—Corpus Christi Apr. 17, 2014, pet. ref’d) (mem. op., not designated for

publication); Oliver v. State, No. 10-12-00389-CR, 2014 WL 1016244, at *7–*8 (Tex. App.—

Waco Mar. 13, 2014, no pet.) (mem. op., not designated for publication); Kuhn v. State, 393

S.W.3d 519, 524 (Tex. App.—Austin 2013, pet. ref’d); cf. Struckman v. State, No. 10-10-00427-

CR, 2011 WL 4712236, *2 (Tex. App.—Waco Oct. 5, 2011, no pet.) (mem. op., not designated

for publication) (distinguishing Martin because trial court included instruction advising jury that

State elected to proceed only on events occurring after September 1, 2007, thereby limiting the

chronological perimeter). This case is no different than Martin or the other appellate court cases
                                               - 10 -
                                                                                   04-14-00100-CR


in which the charge was found to be erroneous. Here, the trial court failed to limit the general

instruction on the nonbinding nature of the dates in the indictment with some kind of specific

instruction that the jury could only convict Gonzales based on acts that occurred on or after

September 1, 2007. Without a specific limiting instruction advising the jurors they could not

consider acts that occurred prior to the effective date of the statute — something other than the

application paragraph — they had no idea they were limited to acts after September 1, 2007. Thus,

the jury could have convicted Gonzales based on an ex post facto basis, which is constitutionally

prohibited. See Martin, 335 S.W.3d at 876. Accordingly, we hold the trial court erred in failing

to instruct the jury that it could not consider acts of sexual abuse occurring before September 1,

2007, the effective date of the statute.

       As noted above, however, Gonzales did not object to the trial court’s failure to include a

limiting instruction. Accordingly, we may only reverse if Gonzales suffered egregious harm. We

hold that he did not.

       Charge error is egregiously harmful if it affects the very basis of the case, deprives the

defendant of a valuable right, or vitally affects a defensive theory. Villarreal, 453 S.W.3d 429,

433 (Tex. Crim. App. 2015); see also Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008).

Egregious harm is a “high and difficult standard” to meet, and such a determination must be “borne

out by the trial record.” Villarreal, 453 S.W.3d at 433 (citing Reeves, 420 S.W.3d at 816). We

will not reverse a conviction unless the defendant has suffered “actual rather than theoretical

harm.” Id. (citing Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011)).

       In examining the record to determine whether charge error has resulted in egregious harm

to a defendant, we consider: (1) the entirety of the jury charge; (2) the state of the evidence;

including the contested issues and weight of probative evidence; (3) the arguments of counsel; and

(4) any other relevant information revealed by the trial record as a whole. Id.
                                               - 11 -
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       We hold that the entirety of the jury charge mitigates against a finding of egregious harm.

First, the charge properly instructed the jury that Gonzales had been charged in the indictment with

continuous sexual abuse of a child “alleged to have been committed on or about the 1st day of

November 2007 through the 16th day of November 2009[.]” Second, the erroneous portion of the

charge was followed almost immediately by the application paragraph that correctly instructed the

jury that to convict Gonzales, it had to find beyond a reasonable doubt that he, “on or about the 1st

day of November, 2007, through the 16th day of November, 2009,” committed two or more acts

of sexual abuse. Courts in this state have repeatedly held, in other contexts, that where the

application paragraph of the charge correctly instructs the jury on the law applicable to the case,

this mitigates against a finding that any error in the abstract portion of the charge was egregious.

Kuhn, 393 S.W.3d at 529 (citing Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999);

Patrick v. State, 906 S.W.2d 481, 492–93 (Tex. Crim. App. 1995); Hughes v. State, 897 S.W.2d

285, 296–97 (Tex. Crim. App. 1994); Toler v. State, 546 S.W.2d 290, 293–94 (Tex. Crim. App.

1977); Bazanes v. State, 310 S.W.3d 32, 39 (Tex. App.—Fort Worth 2010, pet. ref’d); Williams v.

State, 226 S.W.3d 611, 618 (Tex. App.—Houston [1st Dist.] 2007, no pet.)).

       The state of the evidence also weighs against a finding of egregious harm. Gonzales points

to evidence presented at trial of acts occurring before September 1, 2007. Specifically, he points

to testimony that L.W. told an interviewer with the Child Advocacy Center the sexual abuse began

when she was in kindergarten — a time period before September 1, 2007. However, L.W.

subsequently denied telling the interviewer that the inappropriate touching began in kindergarten.

Moreover, L.W. testified about several sexual acts Gonzales performed upon her when she was

ten-years-old, which was in 2009. L.W. also testified appellant touched her private parts “like

once a week” from 2007 to 2009. This evidence was more than sufficient to convict Gonzales

based on acts of sexual abuse occurring between November 1, 2007, and November 16, 2009,
                                                - 12 -
                                                                                      04-14-00100-CR


2010. Thus, the jury could have lawfully convicted Gonzales for continuous sexual abuse of a

child under the age of fourteen even if it had been properly instructed not to base a conviction on

Gonzales’s conduct prior to September 1, 2007.

       Finally, in closing argument, neither the State nor Gonzales mentioned or relied on the

instruction regarding the nonbinding nature of the dates alleged in the indictment, nor did they

address or rely on any testimony or evidence of any acts occurring before September 1, 2007. In

fact, the State specifically advised the jury that “for the purposes of this indictment, for the

continuous sexual abuse of a child statute, we have to find that it was a period beginning November

of 2007 and continuing until her outcry.” The outcry was in April of 2009. The State went on to

advise the jury that the relevant times are reflected in the indictment: “The times in the indictment

are November 1st 2007 through November 16th, I believe, 2009 . . . [s]o everything [L.W.] testified

to that happened after November 1st, 2007, up to April, is fair game.” Gonzales’s counsel did not

mention any dates at all — other than to point out that at certain times L.W. told people the sexual

abuse stopped when she was eight, nine, or ten, but then told the SANE it was March of 2009.

Rather, his closing argument focused on a lack of opportunity for abuse, an absence of evidence

— physical and otherwise, and the victim’s inconsistent statements, asking the jury: “This is the

crux of the matter. Which story are you going to believe that [L.W.] told y’all [sic]?” There was

nothing in the argument of counsel that focused the jury on supporting conviction based on conduct

occurring before September 1, 2007.

       Considering the entirety of the jury charge, the state of the evidence, the arguments of

counsel; and other relevant information in the record, we cannot conclude the charge error in this

case amounted to egregious harm entitling Gonzales to a reversal and a new trial. See Villarreal,

453 S.W.3d at 433. We therefore overrule Gonzales’s second and third issues.



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                      Constitutionality of Section 21.02 of the Texas Penal Code

        Finally, Gonzales contends section 21.02 of the Texas Penal Code is unconstitutional on

its face in that it permits a jury to convict a defendant on a less than unanimous verdict.

Specifically, he contends it permits the jury to convict a defendant without unanimously agreeing

upon exactly which two acts of sexual abuse were committed within the thirty day or more period.

Gonzales further contends the statute is contrary to statutory requirements of unanimous verdicts.

                                              Standard of Review

        We review a facial challenge to the constitutionality of a criminal statute de novo. Ex parte

Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013); Byrne v. State, 358 S.W.3d 745, 748 (Tex. App.—

San Antonio 2011, no pet.). We begin any review with the presumption that the statute is

constitutional and “the Legislature has not acted unreasonably or arbitrarily.” Lo, 424 S.W.3d at

15; State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). Generally, it is the burden of

the individual challenging the statute to rebut the presumption of constitutionality. 2 Lo, 424

S.W.3d at 15; Rosseau, 396 S.W.3d at 557; Byrne, 358 S.W.3d at 748.

        As set out above, to convict a defendant for continuous sexual abuse of a child under the

age of fourteen, a jury must find beyond a reasonable doubt that: (1) the defendant committed “two

or more acts of sexual abuse” during a period of thirty or more days; and (2) at the time of each

act of sexual abuse, the defendant was “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)(1), (2). However, the statute specifically

states jurors need not unanimously agree on which specific acts of sexual abuse the defendant

committed or the exact dates those acts were committed. Id. § 21.02(d). Rather, the jury need

only unanimously agree “that the defendant, during a period that is 30 or more days in duration,


2
  When the State seeks to restrict and punish speech based on content, the presumption is reversed and courts presume
the statute is unconstitutional and the State must rebut that presumption. Lo, 424 S.W.3d at 15.

                                                       - 14 -
                                                                                           04-14-00100-CR


committed two or more acts of sexual abuse.” Id. Gonzales takes issue with this, arguing the

failure to require unanimity on specific acts and dates is unconstitutional and statutorily

impermissible.

       However, as Gonzales recognizes, numerous Texas appellate courts, including this court,

have addressed this issue and in each instance held section 21.02 constitutional and statutorily

sound. See, e.g., Pollock v. State, 405 S.W.3d 396, 405–06 (Tex. App.—Fort Worth 2013, no

pet.); Fulmer v. State, 401 S.W.3d 305, 313 (Tex. App.—San Antonio 2013, pet. ref’d), cert.

denied, 134 S. Ct. 436 (2013); Kennedy v. State, 385 S.W.3d 729, 732 (Tex. App.—Amarillo 2012,

pet. ref’d), cert. denied, 134 S.Ct. 681 (2013); Casey v. State, 349 S.W.3d 825, 829-30 (Tex.

App.—El Paso 2011, pet. ref’d); Martin, 335 S.W.3d at 872; Jacobsen v. State, 325 S.W.3d 733,

739 (Tex. App.—Austin 2010, no pet.); Render v. State, 316 S.W.3d 846, 857–58 (Tex. App.—

Dallas 2010, pet. ref’d). The courts reasoned:

                 [I]t is the commission of two or more acts of sexual abuse over the
                 specified time period—that is, the pattern of behavior or the series
                 of acts—that is the actus reus element of the offense as to which the
                 jurors must be unanimous in order to convict. The individual acts
                 of sexual abuse that make up this pattern of behavior or series of acts
                 are not themselves elements of the offense, but are merely
                 evidentiary facts, the manner and means by which the actus reus
                 element is committed. When there is evidence of more than two acts
                 of abuse over the specified time period, section 21.02(d) makes it
                 clear that the jurors need not agree as to which individual acts were
                 committed so long as they agree that the defendant committed at
                 least two.

Fulmer, 401 S.W.3d at 311–12 (quoting Jacobsen, 325 S.W.3d at 737); accord Casey, 349 S.W.3d

at 829; Martin, 335 S.W.3d at 872–73; Render, 316 S.W.3d at 857–58. Texas intermediate courts

have routinely held that the individual acts of sexual abuse are manner and means, not an element

of the offense, and section 21.02 does not violate the jury unanimity requirement. See Fulmer,




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401 S.W.3d at 313; Casey, 349 S.W.3d at 829; Martin, 335 S.W.3d at 872–73; Jacobsen, 325

S.W.3d at 737; Render, 316 S.W.3d at 857–58.

       We have reviewed Gonzales’s arguments and despite his claims to the contrary, we find

that each has been rejected either by this court or one of our sister courts — he has presented

nothing new with regard to his claim that section 21.02 is unconstitutional. Accordingly, we abide

by our prior decision in Fulmer, as well as the similar decisions from our sister courts. We

therefore overrule Gonzales’s fourth and final issue.

                                          CONCLUSION

       Based on the foregoing, we affirm the trial court’s judgment.


                                                  Marialyn Barnard, Justice

Do Not Publish




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