                             NUMBER 13-16-00429-CR

                                COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


SALVADOR PAEZ,                                                               Appellant,

                                            v.

THE STATE OF TEXAS,                                                           Appellee.


                     On appeal from the 93rd District Court
                          of Hidalgo County, Texas.


                        MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Benavides
             Memorandum Opinion by Justice Benavides

       Appellant Salvador Paez challenges his conviction for continuous sexual abuse of

a child, a first-degree felony. TEX. PENAL CODE ANN. § 21.02 (West, Westlaw through 2017

1st C.S.). By five issues, Paez complains that the evidence is not sufficient to support his

conviction, Section 21.02 violates the jury unanimity requirements of the United States and

Texas constitutions, and that there is charge error. We affirm.
                                              I. BACKGROUND

        Paez was charged with continuous sexual abuse of two girls, sisters aged four and

five. See id. The mother of the children described at trial how the family knew Paez and

the circumstances that allowed him access to her girls. She explained that Paez lived in

an apartment near her family’s apartment. She and her husband have seven children,

including the two young girls, Carmen Cibrian and Juanita Hernandez.1

        Paez first became friends with Lorenzo, the girls’ father, then with their mother, and

he often joined their barbeques on Saturday nights. After Paez had been friends with the

family for about a year, he was allowed to go in and out of the house during their social

events, to get things from the kitchen, or to use the bathroom at their apartment.

Sometimes the mother would be in the kitchen, sometimes not. Guests used the hall

bathroom that was near the door of the girls’ bedroom. The girls’ bedroom door was left

partly open when the girls went to bed because they were more comfortable with the door

open.

        According to the girls’ mother, on Sunday night June 15, 2015, the two girls were

with her in the apartment complex walking toward their apartment. Carmen saw Paez on

the sidewalk and told her mother that “she had to tell me the truth because she couldn’t

hold it anymore” and that the neighbor, meaning Paez, touched her. Once they got into

the apartment, the mother asked Carmen, “did he touch you?” Carmen told her mother

that the neighbor “touched her in the middle part, and [Juanita], too.” When Carmen told

her mother that the neighbor touched her in her middle part, Carmen pointed down to her



        1  “Carmen Cibrian” and “Juanita Hernandez” are pseudonyms for the complainants, as authorized
by article 57.02 of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 57.02(b) (West,
Westlaw through 2017 1st C.S.); Stevens v. State, 891 S.W.2d 649, 651 (Tex. Crim. App. 1995).

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vaginal area. Juanita also told her mother that the neighbor touched her on “the butt and

the middle area, like the front.” Juanita “turned around and was showing all — where her

butt’s at and the front, genital area, the vaginal area, you know, yeah.” Even though the

girls did not know Paez’s name, “[a]s soon as [Carmen] saw him, she told me that he

touched her.” The mother estimated that Paez had gone inside the apartment five times

over a year’s period. The same day the girls told their mother that Paez touched them,

the mother confronted Paez, as did Carmen.

      During her testimony, the girls’ mother identified photographs of Paez taken in June

2015 when he had very short hair. She also described him as having a shaved head

during part of the time she knew him.

      After the girls’ outcries, their mother called the police in Edinburg and took the girls

to be examined at a local hospital. The family moved away within a few months to get the

girls away from that environment.

      Carmen testified at trial. She was seven years old and in elementary school. She

and her sister shared a bedroom in the apartment. They had bunk beds, and Carmen had

the top bunk. Juanita and another sister had the bottom bunk. Carmen explained the

touching by saying “at night they used to have barbecues and the neighbor would come.”

The neighbor would ask “to go to the restroom and then he came to my room” while she

was sleeping. Her mom or dad would be in the kitchen. Carmen also explained that she

had two private parts, one to pee and the other is “the butt.” When the neighbor came into

her room, the first time he touched her private part, the one to pee, underneath her

pajamas and underwear. He used his hand and put fingers inside her private part to pee.

Carmen testified she woke up and told him to stop. He also used his hand to grab her butt



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and kissed her on her cheek. Carmen testified that these events happened more than

once, but she did not know how many times. Carmen saw the neighbor do the same thing

to Juanita, he put his finger inside Juanita’s clothing, kissed her cheek, and grabbed her

butt.

        Carmen explained that she did not know the neighbor’s name and did not initially

recognize him in the courtroom but was able to describe the events leading up to her outcry

to her mother, including seeing “the guy that did the thing to me.” Carmen described the

man who touched her as bald. After a break, Carmen identified Paez and said she

recognized him because of his nose. Carmen also recognized the wife of the man who

touched her; Paez’s wife was sitting in the audience of the courtroom.

        Juanita also testified. She was five years’ old and did not want to talk about the

events involving the neighbor, although she eventually identified a photo of Paez and

testified that he touched the part of her body that she uses to pee with his hand. Juanita

denied that the neighbor touched her butt. Juanita saw the neighbor touch her sister

Carmen while Carmen was asleep. According to Juanita, the neighbor touched her only

once. She told her mom because she “didn’t want him to touch it.”

        The sexual assault nurse at the hospital testified that her physical findings were

essentially normal, which is very common. She also interviewed Carmen who told her that

the neighbor came over when the family barbequed, he asked to use the restroom, then

came into her room, touched her inside her pajamas, and put his finger in her front private

part. Juanita who was four years old did not give her any details.

        The forensic interviewer testified about the process of interviewing each of the girls

and explained how much more difficult it was to interview Juanita because of her age.



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       The final State’s witness was Investigator Joaquin Mendoza of the Edinburg Police

Department. Investigator Mendoza arrested and interviewed Paez. Paez waived his

Miranda rights and made a statement that was videotaped. See Miranda v. Arizona, 384

U.S. 436, 444–45 (1966). Investigator Mendoza also prepared a summary statement that

day, Paez read it in Spanish and initialed and signed the statement before a witness.

Inspector Mendoza read Paez’s summary statement at trial. In his statement, Paez

admitted:

       about a month ago we were drinking at their apartment, No. 473, with my
       neighbors. I went in heading to the bathroom; and after I got out of the
       bathroom, I went into the room where my neighbors’ daughters sleep. I saw
       the girls asleep, and I saw the one that was approximately four years old was
       asleep in the bottom bunk bed. I got close to the girl; and with my right hand,
       I started rubbing her vagina under her underwear. The girl woke up and I
       stopped touching her and I left the room.

       On Friday, June 12th, 2015, I was again drinking with my neighbors. I went
       into the girls’ room again. I saw the older girl — I think she’s about six years
       old—asleep in the top bunk bed and I started rubbing her vagina above her
       underwear. The girl woke up and told me “no, no” and I told her to go to
       sleep. Then I saw the 4-year-old girl on the bottom bunk, and I gave her a
       kiss. I regret very much having touched the girls that way.

       Before trial, the State had an interpreter do a word for word translation of the

Spanish into English that was admitted into evidence. Multiple times in his statement,

Paez says he doesn’t remember and that he is repentant. He said, “I don’t have it in my

mind because no—I didn’t do that. I mean—even if I was drunk, I don’t remember having

done . . . .” Later on in his video interview, Paez said that he did not recall when he first

touched the girls, but then he said a month, “about a month.” He then said, “I don’t

remember if it was only the little one. . . . Yes, and the older one I think that–not that time

. . . . I just grabbed her part.” Paez admitted touching each child and putting his finger




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inside each child’s female sexual organ. He said the older one just once, but the younger

child, twice.

       The defense did not put on any evidence. The jury found Paez guilty and the trial

court sentenced Paez to thirty years’ imprisonment in the Texas Department of Criminal

Justice–Institutional Division. Paez obtained new counsel who filed a motion for new trial

in which counsel raised constitutional challenges to the statute and claims of ineffective

assistance of counsel. The trial court heard evidence on the motion for new trial and

denied it. This appeal ensued.

                                 II. SUFFICIENCY OF THE EVIDENCE

       By his first issue, Paez argues that there is insufficient evidence of two or more

instances of sexual abuse that extended over a thirty-day period.

       A.       Standard of Review

       The Court is required to apply the sufficiency standard from Jackson v. Virginia,

443 U.S. 307, 319 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010);

see also Williams v. State, No. 03-11-00598-CR, 2013 WL 6921489 at *6 n.10 (Tex.

App.—Austin Dec. 31, 2013, pet. ref’d.) (mem. op., designated not for publication).

Jackson requires the reviewing court to “view[] the evidence in the light most favorable to

the prosecution,” to determine whether “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319

(emphasis in original). When a reviewing court views the evidence in the light most

favorable to the verdict, it “is required to defer to the jury's credibility and weight

determinations because the jury is the sole judge of the witnesses’ credibility and the

weight to be given their testimony.” Brooks, 323 S.W.3d at 899 (emphasis in original).



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“The reviewing court must give deference to the responsibility of the trier of fact to fairly

resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007) (citing Jackson, 443 U.S. at 318–19). If the record supports conflicting inferences,

we presume that the fact finder resolved the conflict in favor of the prosecution and defer

to that resolution. Garcia v. State, 367 S.W.3d 684, 686–87 (Tex. Crim. App. 2012);

Brooks, 323 S.W.3d at 899.

       Evidence is insufficient under the Jackson standard in four circumstances: 1) the

record contains no evidence probative of an element of the offense; 2) the record contains

a mere “modicum” of evidence probative of an element of the offense; 3) the evidence

conclusively establishes a reasonable doubt; and 4) the acts alleged do not constitute the

criminal offense charged. 443 U.S. at 314, 318 n. 11, 320. If an appellate court finds the

evidence insufficient under this standard, it must reverse the judgment and enter an order

of acquittal. See Tibbs v. Florida, 457 U.S. 31, 41 (1982).

       B.     Applicable Law

       The elements of continuous sexual abuse of a child are: 1) the defendant committed

two or more acts of sexual abuse, 2) during a period that is more than thirty days in

duration, and 3) at the time of the commission of each of these acts the defendant was

older than 17 and the victim was younger than 14. TEX. PENAL CODE ANN. § 21.02(b);

Mitchell v. State, 381 S.W.3d 554, 557 (Tex. App.—Eastland 2012, no pet.).              “The

legislature created the offense of continuous sexual abuse of a child in response to a need

to address sexual assaults against young children who are normally unable to identify the

exact dates of the offenses when there are ongoing acts of sexual abuse.” Mitchell, 381



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S.W.3d at 561 (citing Williams v. State, 305 S.W.3d 886, 890 n. 7 (Tex. App.—Texarkana

2010, no pet.) (citing Dixon v. State, 201 S.W.3d 731, 737 (Tex. Crim. App. 2006)).

       We measure the sufficiency of the evidence supporting a conviction “by the

elements of the offense as defined by the hypothetically correct jury charge for the case,”

applied to the particular facts of the case. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim.

App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)); see

Wheaton v. State, 129 S.W.3d 267, 271–72 (Tex. App.—Corpus Christi 2004, no pet.).

“Such a charge would be one that accurately 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 tried.” Malik, 953 S.W.2d at 240.

       Although the exact dates of the abuse need not be proven, the offense of

continuous sexual abuse of a child requires proof that there were two or more acts of

sexual abuse that occurred during a period that was thirty or more days in duration. TEX.

PENAL CODE ANN. § 21.02(d) (“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.”);

Williams, 305 S.W.3d at 890–91 (requiring the State to prove two acts of sexual abuse

“committed over a span of thirty or more days”). But “members of the jury are 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.” TEX. PENAL CODE ANN. §

21.02(d).




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       C.     Discussion

       Paez argues that there is insufficient evidence to show that there were two or more

instances of sexual abuse that extended over a thirty-day period. Neither child could say

when the events of touching occurred or how many times, although Carmen said there

were “many.” Their mother’s testimony was that the family knew Paez for approximately

two years before Carmen’s outcry. It was just the year before Carmen’s outcry that Paez

began coming in the house, and the mother testified it was approximately five times during

that year. The girls confirmed that Paez touched them the Friday or Saturday before their

outcry on Sunday June 14, 2015. Paez stated that he did not remember touching the girls

initially, and then admitted that approximately a month before Monday June 16, 2015, he

was in their room and touched Juanita but could not be certain that he touched Carmen.

However, the girls’ initial outcry to their mother included Paez touching Juanita in her front

“middle part” and on her butt, and Carmen told her mother that Paez touched her in her

front “middle part” and grabbed her butt. In addition, Carmen told the forensic interviewer

that the touching happened “many times.”

       Based upon the testimony, the jury could have believed that during the twelve

months before Carmen’s outcry, Paez had touched her “many times” in a period over thirty

days. The jury could have viewed Paez’s statement which attempted to minimize his

conduct, and which was full of “I don’t remember” as being a minimum of events, rather

than a full account. On this record, a reasonable jury could have found Paez committed

two or more incidents of sexual abuse over a thirty or more-day period. See Wesbrook v.

State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (holding that the jury has the exclusive

right to judge credibility and determine the weight to be given to evidence); see also Cantu



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v. State, No. 13-14-00133-CR, 2018 WL 360235 at *4 (Tex. App.—Corpus Christi Jan. 11,

2018, no pet.) (mem. op., designated not for publication) (holding that the evidence was

sufficient to support a conviction of defendant of continuous sexual assault of a child where

evidence from the child was contradicted by defendant). Paez’s first issue is overruled.

                                III. CONSTITUTIONAL CHALLENGES

       By his second and third issues, Paez argues that section 21.02 violates the

requirements of jury unanimity in the United States and Texas constitutions. TEX. PENAL

CODE ANN. § 21.02.

       A.     United States Constitution

       Paez argues that the Sixth Amendment to the U.S. Constitution made applicable to

the states by the Fourteenth Amendment requires jury unanimity and that section 21.02

violates those requirements. U.S. CONST. AMEND. IV, XIV, § 1. However, the Fourteenth

Amendment does not extend the Sixth Amendment’s jury unanimity requirement to state

prosecutions. See McDonald v. City of Chicago, 561 U.S. 742, 766 n.14, 867–68 (2010);

Schad v. Arizona, 501 U.S. 624, 630 (1991); see also Romero v. State, 396 S.W.3d 136,

147 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). Paez relies in part on Andres v.

United States, however that reliance is misplaced. 333 U.S. 740 (1948). Andres is a

federal case in which the defendant was convicted of murder under a federal statute.

Accordingly, Paez’s second issue is overruled.

       B.     Texas Constitution

       Paez also argues that section 21.02 violates the unanimity requirements of Texas

law. See TEX. CONST. ART. I, §§ 10, 13, 19; TEX. CODE CRIM. PROC. ANN. art. 36.29(a)

(West, Westlaw 2017 through 1st C.S.). “Each juror must agree the defendant committed



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each element of the crime, but need not agree on the ‘underlying brute facts’ that make up

the ‘manner and means’ by which the defendant committed the crime.” Ngo v. State, 175

S.W.3d 738, 747, 751 n. 49 (Tex. Crim. App. 2005) (quoting Richardson v. United States,

526 U.S. 813, 817 (1999)). The Texas Legislature has defined the crime of continuous

sexual abuse of a child so that the series of events of abuse over the specified period of

time are the elements. The particular sexual abuse acts are the manner or means about

which the jury is not required to be unanimous. See Fulmer v. State, 401 S.W.3d 305, 311

(Tex. App.—San Antonio 2013, pet ref’d). Jury unanimity is required for the findings that

a defendant committed two or more acts of sexual abuse over a more than thirty-day

period. Carmichael v. State, 505 S.W.3d 95, 106 (Tex. App.—San Antonio 2016, pet.

ref’d).

          We and our sister courts have previously considered whether section 21.02 violated

the due course of law requirements of the Texas Constitution and have previously held

that it does not. Nothing before us today changes that analysis. Id.; Fulmer, 401 S.W.3d

at 312–13; Casey v. State, 349 S.W.3d 825, 829–30 (Tex. App.—El Paso 2011, pet. ref’d);

Martin v. State, 335 S.W.3d 867, 872 (Tex. App.—Austin 2011, pet. ref’d); Jacobsen v.

State, 325 S.W.3d 733, 737 (Tex. App.—Austin 2010, no pet.); Reckart v. State, 323

S.W.3d 588, 600–01 (Tex. App.—Corpus Christi 2010, pet. ref’d); Render v. State, 316

S.W.3d 846, 857–58 (Tex. App.—Dallas 2010, pet. ref'd).

          Paez’s third issue is overruled.

                                      IV.    JURY CHARGE

          By his fourth and fifth issues, Paez argues that the trial court’s jury charge was

structurally and egregiously erroneous by authorizing conviction as charged on a less than



                                                 11
unanimous verdict. These issues flow from Paez’s argument that § 21.02 violates due

process by allowing a less than unanimous verdict because jurors do not have to agree

on the underlying incidents of sexual abuse.

       A.     Standard of Review

       Paez did not object the jury charge before it was given. As a result, if there was

error, he must establish egregious harm. See Gomez v. State, 498 S.W.3d 691, 696 (Tex.

App.—Houston [1st Dist.] 2016, no pet.).

       B.     Discussion

       Paez argues that Gomez compels reversal of his conviction.             In Gomez, the

defendant was charged with aggravated sexual assault of a child. Id. The child testified

to four discrete incidents in which Gomez put his finger in her vagina. Id. The State did

not elect which incident the jury was to consider, and Gomez did not object to the charge.

Id. The case was reversed on appeal after the court of appeals held that the State’s closing

argument encouraged the jury to decide the case on an improper ground which tipped the

scales to find egregious harm. Id.

       Gomez was charged with a single count of sexual abuse of a child which required

the State to prove a single event and which required the jury to agree on the same event.

But because the jury charge did not instruct the jury that they had to agree on one of the

multiple events, the jury charge violated the requirement of unanimity. Id.

       Here, unlike Gomez, the elements on which the jury is required to agree in a

continuous sexual abuse of a child case are: that the defendant committed more than two

of the defined acts over a period of thirty or more days. The jury was not required to agree

on the specific incidents that constituted the manner or means of the offense, as discussed



                                                12
in part III(B), supra. Accordingly, there was no charge error and no harm to consider. See

Carmichael, 505 S.W.3d at 106 (holding that jury unanimity is required for the findings that

a defendant committed two or more acts of sexual abuse over a more than thirty-day

period.); Martin, 335 S.W.3d at 872. Paez’s issues four and five are overruled.

                                      V. CONCLUSION

       We affirm the judgment of the trial court.



                                                               GINA M. BENAVIDES,
                                                               Justice

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

Delivered and filed the
16th day of August, 2018.




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