Reverse and Remand; Opinion Filed September 19, 2013.




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-10-01605-CR

                             ABEL SANCHEZ, III, Appellant
                                                 V.
                           THE STATE OF TEXAS, Appellee

                         On Appeal from the 195th Judicial District Court
                                      Dallas County, Texas
                              Trial Court Cause No. F06-27884-N

                       MEMORANDUM OPINION ON REMAND
                         Before Justices Moseley, Myers, and Evans
                                Opinion by Justice Moseley

       The Court of Criminal Appeals determined that Abel Sanchez, III was entitled to a jury

instruction on the affirmative defense that he was within three years of age of the alleged victim

in this criminal solicitation of a minor case. See Sanchez v. State, 400 S.W.3d 595 (Tex. Crim.

App. 2013). The court remanded the case to this Court to consider whether Sanchez was harmed

when the trial court failed to give the affirmative defense instruction. Id. at 601.

       The background of the case and the evidence adduced at trial are well known to the

parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in

law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We reverse the trial

court’s judgment and remand this case for further proceedings.

       The court in Sanchez said, “Thus, if the circumstances surrounding the defendant’s
conduct were such that he believed the minor’s age to be within three years of his own, then he

would not have committed an offense at all, provided he raised and proved the within-three-years

affirmative defense.” Sanchez, 400 S.W.3d at 599. 1 We address only whether Sanchez was

harmed when the trial court omitted the affirmative defense instruction. Id. at 601.

         The Court of Criminal Appeals concluded the affirmative defense applies to criminal

solicitation of a minor and the evidence in this case raised the defense. Sanchez, 400 S.W.3d at

598–99. Sanchez objected that the charge did not include an instruction on the within-three-

years affirmative defense. As a result, the failure to include the defense in the charge was error

and we assess whether the error resulted in some harm to Sanchez. See Ngo v. State, 175 S.W.3d

738, 743 (Tex. Crim. App. 2005); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1985); see Granger v. State, 3 S.W.3d 36, 41 (Tex. Crim. App. 1999) (failure to give mistake of

fact instruction when requested and raised by evidence reviewed for some harm under Almanza

standard).

         We assess the degree of harm in light of the entire jury charge, the state of the evidence,

including the contested issues and weight of the probative evidence, the arguments of counsel,

and any other relevant information in the record. Barron v. State, 353 S.W.3d 879, 883–84 (Tex.

Crim. App. 2011).

         The defendant has the burden of proof on an affirmative defense. See TEX. PENAL CODE

ANN. § 2.04(d).        Thus, failure to include an affirmative defense instruction when evidence

supports the defense prevents the jury from considering it. See Granger, 3 S.W.3d at 39 (failure

         1
           We express no opinion that the defendant’s belief, rather than the victim’s actual age, is sufficient to raise
the affirmative defense. It is the victim’s actual age, not the defendant’s belief as to her age or the victim’s false
representations about her age that determines whether the victim may consent to sexual conduct. See Smith v. State,
272 S.W.2d 104, 106 (Tex. Crim. App. 1954) (“It is no defense to a prosecution for rape of a child under the age of
consent that accused was told by his victim that she was above such age.”) (quoting Farrell v. State, 215 S.W.2d
625, 626 (Tex. Crim. App. 1948) (“In such event he acts at his own peril.”)); Zachary v. State, 122 S.W. 263, 265
(Tex. Crim. App. 1909); Edens v. State, 43 S.W. 89 (Tex. Crim. App. 1897). We think the same rule applies to the
applicability of the within-three-years affirmative defense.


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to give appropriate mistake of fact instruction denied the jury the opportunity to decide the

issue). We conclude the jury charge as a whole supports a finding of some harm.

       The state of the evidence also supports a finding of some harm. In 2004, Detective

Marshall gave Sanchez a birthdate for Molly that was within three years of Sanchez’s birthdate.

As a result of the “on or about” language in the indictment and jury charge,

       the jury could very well have concluded that appellant was guilty of criminal
       solicitation of a minor based solely on his conduct in April 2004, not on conduct
       from a later date. If that was the case, then “Molly” would be under seventeen
       and appellant would have been within three years of her age. Thus, there would
       have been some evidence to raise the affirmative defense in § 22.011(e).

Sanchez, 400 S.W.3d at 600.

       The State contends the error was harmless because the record as a whole shows the

conduct starting in 2005 and specifically in January 2006 was the basis of the State’s case.

Based on the fictitious birthdate for the fictitious Molly given by Detective Marshall, Molly

would have turned 17 on October 25, 2005. Any conduct prior to that date would have raised the

within-three-years affirmative defense according to Sanchez, 400 S.W.3d at 600. Because there

is evidence of conduct occurring before this date, we conclude the record supports a finding of

some harm. See id.

       In closing argument, the State argued that Molly repeatedly told Sanchez she was 15,

particularly on the date of the arrest. Defense counsel argued that based on the birthdates given

in 2004, there was only two and a half years’ difference in the ages of Sanchez and Molly. But,

because of the charge error, the defense could not argue the within-three-years affirmative

defense to the jury. The arguments of counsel tend to show some harm resulted from the charge

error. There is no other relevant information in the record.

       Applying the guidelines in Almanza, we conclude the error resulted in some actual harm

to appellant. See Barron, 353 S.W.3d at 884. Accordingly, we sustain appellant’s first issue,


                                               –3–
reverse the trial court’s judgment, and remand for further proceedings.




                                                     /Jim Moseley/
                                                     JIM MOSELEY
                                                     JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)
101604RF.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                       JUDGMENT

ABEL SANCHEZ, III Appellant                          On Appeal from the 195th Judicial District
                                                     Court, Dallas County, Texas
No. 05-10-01605-CR        V.                         Trial Court Cause No. F06-27884-N.
                                                     Opinion delivered by Justice Moseley.
THE STATE OF TEXAS, Appellee                         Justices Myers and Evans participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and the cause REMANDED for further proceedings.


Judgment entered this 19th day of September, 2013.




                                                   /Jim Moseley/
                                                   JIM MOSELEY
                                                   JUSTICE




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