Affirmed and Memorandum Opinion filed August 7, 2018.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-15-00805-CR

                      EDWARD BEALEFIELD, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 176th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1464575

                       MEMORANDUM OPINION

      We consider two overarching questions in this appeal from a conviction for
continuous sexual abuse of a young child: (1) whether the evidence is sufficient to
support the conviction, and (2) whether the trial court erred in its submission of the
jury charge. For reasons explained more fully below, we conclude that the evidence
is sufficient and that any error in the jury charge was harmless. We therefore affirm
the trial court’s judgment.
                                  BACKGROUND

      When they first met, appellant was forty-six years old and the complainant
was thirteen. They were both neighbors, and their families bonded over a summer
trip to the beach.

      Nothing inappropriate happened during the trip, but once they returned home,
a romantic relationship started to form. Appellant and the complainant began having
frequent conversations in private. They kissed for the first time about a month after
the trip. A few months later, their relationship became sexual, and for the next few
years, they would meet regularly to have sexual intercourse, as frequently as three
or four times each week.

      The complainant claimed that she was in love with appellant, but her feelings
gradually waned as she entered high school. At age fifteen, she told a relative about
the relationship. The relative notified police, who then arrested appellant.

                      SUFFICIENCY OF THE EVIDENCE

      We begin with appellant’s second and third issues because, if meritorious,
they would afford greater relief than his first issue. See Saldivar v. State, 542 S.W.3d
43, 45 (Tex. App.—Houston [14th Dist.] 2017, pet. filed).

      Appellant contends in his second issue that the evidence is insufficient to
support the conviction. Anticipating that we will perform an analysis for just the
legal sufficiency of the evidence, appellant contends in his third issue that the failure
to perform a factual sufficiency review violates notions of due process, due course
of law, and equal protection.

      We have seen—and rejected—this factual sufficiency complaint before. See
Mason v. State, 416 S.W.3d 720, 728 n.10 (Tex. App.—Houston [14th Dist.] 2013,
pet. ref’d). We only apply one standard when reviewing a challenge to the

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sufficiency of the evidence, and that standard is the standard for legal sufficiency.
See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). Under this
standard, we examine all of the evidence in the light most favorable to the verdict
and determine whether a rational trier of fact could have found the essential elements
of the offense beyond a reasonable doubt. See Robinson v. State, 466 S.W.3d 166,
172 (Tex. Crim. App. 2015).

      The offense in this case has the following essential elements: (1) the defendant
committed two or more acts of sexual abuse during a period that is thirty or more
days in duration; and (2) at the time of the commission of each of the acts of sexual
abuse, the defendant was seventeen years of age or older and the victim was a child
younger than fourteen years of age, regardless of whether the defendant knew the
age of the victim at the time of the offense. See Tex. Penal Code § 21.02(b). For
purposes of this offense, an “act of sexual abuse” includes an aggravated sexual
assault, id. § 21.02(c)(4), which the defendant can commit by causing his sexual
organ to contact the sexual organ of a child under fourteen years of age. Id.
§ 22.021(a).

      Appellant does not dispute that there is legally sufficient evidence that he
committed two or more acts of sexual abuse during a period that is thirty or more
days in duration, that the complainant was the victim of those acts, and that he was
older than seventeen years of age at the time of those acts. Instead, appellant argues
that there is no evidence to support a finding that the sexual abuse occurred during
a period in which the complainant was younger than fourteen years of age.

      Viewed in the light most favorable to the verdict, the evidence established the
following facts:

       The complainant was born on April 14, 1998.


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       The complainant joined appellant on a trip to the beach during the
        “summer of 2011,” when she was thirteen years old.
       Their first physical contact was a kiss, which occurred “about a month after
        the summer trip.”
       They had sexual intercourse for the first time “a few months after the
        vacation.”
       They had sexual intercourse “a lot,” as frequently as three or four times
        each week for “a few years.”
       They had sexual intercourse at various locations, including a camper and
        a motel. If appellant was checking in to a motel, she would wait in the car
        because she was so much younger than him.
       When the complainant went to the motels with appellant, she appeared
        “about three or four years younger” than she did at the time of trial, when
        she was seventeen years old.
      Aside from the complainant’s birthday, the evidence did not establish any
specific dates in this timeline. Nevertheless, the State alleged that appellant
committed his acts of sexual abuse “on or about October 12, 2011 through November
17, 2011.”

      Appellant correctly observes that there is no evidence regarding those specific
dates. Nor is there any evidence that the abuse occurred on or about a holiday, such
as Halloween or Thanksgiving, which would more closely support the October
through November period alleged by the State.

      However, the question in a sufficiency analysis “is not what evidence there
isn’t, it’s what evidence there is.” See Acosta v. State, 429 S.W.3d 621, 630 (Tex.
Crim. App. 2014). Because a conviction may be had on circumstantial evidence
alone, there is no requirement that the proof point directly and independently to each
element of the offense. Id. at 625. The trier of fact may convict the defendant “if the
conclusion is warranted by the combined and cumulative force of all the
incriminating circumstances.” Id. The trier of fact may also use common sense and

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apply common knowledge, observation, and experience gained in ordinary affairs
when drawing inferences from the evidence. Id.

      Here, the complainant testified that she and appellant began to have sexual
intercourse “a few months” after their summer vacation. The complainant never
clarified what she meant by “few,” but that word generally means a small number
greater than one, and the jury could have reasonably determined that the complainant
was using that word according to its common understanding. See, e.g., New Oxford
American Dictionary 640 (Angus Stevenson & Christine Lindberg eds., 3d ed. 2010)
(defining “few” as “a small number of”); Webster’s New World College Dictionary
501 (Victoria Neufeldt et al. eds., 3d ed. 1996) (“not many; a small number of”);
Webster’s Ninth New Collegiate Dictionary 459 (Frederick C. Mish ed., 9th ed.
1991) (“at least some but indeterminately small in number”).

      The complainant did not clarify the precise timing of her summer vacation
either, but the jury could have reasonably inferred that it occurred in June, July, or
August. Those are popular months for trips to the beach, and also the time of year
when schoolchildren, such as the complainant, are off on summer break. If the
complainant returned from her vacation in June, on the early end of this spectrum,
then a period of abuse that ran between October and November would have occurred
four to five months after the vacation. If the complainant returned from her vacation
in August, on the later end of this spectrum, then the same period of abuse would
have occurred two to three months after the vacation. Either way, the period between
October and November falls aptly within the vernacular meaning of “a few months”
following a summer vacation. Therefore, the jury could have reasonably found that
the sexual abuse occurred on or about October 12, 2011 through November 17, 2011,
when the complainant was thirteen years old. See also Brown v. State, 381 S.W.3d
565, 574 (Tex. App.—Eastland 2012, no pet.) (indicating that children are

                                          5
sometimes unable to identify the exact dates of their abuse, and that this offense,
which focuses on a continuing course of conduct rather than on precise dates, was
created in response to that inability).

      The jury’s finding is supported by other circumstantial evidence as well. For
example, the complainant told authorities about her relationship with appellant when
she was just fifteen years old. If, by that time, she and appellant had been having
sexual intercourse for “a few years”—plural, as she claimed—then the jury could
have reasonably concluded that the sexual relationship started when she was thirteen
years old (two years earlier), and not fourteen years old (one year earlier).

      Also, the complainant testified at trial that she appeared as much as “four years
younger” when appellant took her to motels to have sexual intercourse. Because the
complainant was seventeen years old at the time of this testimony, the jury could
have reasonably concluded that she was thirteen years old when the sexual abuse
occurred.

      The cumulative force of all of this evidence supports a finding that the
complainant was younger than fourteen years of age when appellant committed the
acts of sexual abuse. We therefore conclude that the evidence is legally sufficient to
support the conviction.

                               THE JURY CHARGE

      In his last remaining issue, appellant raises several complaints about error in
the jury charge.

      We review complaints of charge error under a two-step process, considering
first whether error exists. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App.
2005). If error does exist, we then analyze that error for harm under the procedural
framework of Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984).

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I.    Limitations Instruction

      Appellant’s first complaint pertains to a limitations instruction, but before we
discuss that instruction, we first provide some additional background. We start with
the abstract portion of the charge, which contained the following instruction:

      Our law provides that a person commits an offense if during a period
      that is 30 or more days in duration, the person commits two or more
      acts of sexual abuse, regardless of whether the acts of sexual abuse are
      committed against one or more victims; and, at the time of the
      commission of each of the acts of sexual abuse, the person was 17 years
      of age or older and the victim is a child younger than 14 years of age.

      The trial court then gave several definition instructions, followed next by an
application paragraph, which provided as follows:

      Now, if you find from the evidence beyond a reasonable doubt that in
      Harris County, Texas, the defendant, Edward Bealefield, heretofore on
      or about October 12, 2011 through November 17, 2011, did then and
      there unlawfully, during a period of time of thirty or more days in
      duration, commit at least two acts of sexual abuse against a child
      younger than fourteen years of age, including an act constituting the
      offense of aggravated sexual assault of a child, committed against [the
      complainant] on or about October 12, 2011, and an act constituting the
      offense of aggravated sexual assault of a child, committed against [the
      complainant] on or about November 17, 2011, and the defendant was
      at least seventeen years of age at the time of the commission of each of
      those acts, then you will find the defendant guilty of continuous sexual
      abuse of a young child, as charged in the indictment.
      After this application paragraph, the trial court instructed the jury about the
lesser-included offense of aggravated sexual assault of a child. The trial court then
gave the following limitations instruction:

      You are further instructed that the State is not bound by the specific
      date which the offense, if any, is alleged in the indictment to have been
      committed, but that a conviction may be had upon proof beyond a
      reasonable doubt that the offense, if any, was committed at any time

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      within the period of limitations. There is no limitation period applicable
      to the offense of continuous sexual abuse of a young child, aggravated
      sexual assault of a child and indecency with a child.

      Appellant was not charged with the lesser-included offense of indecency with
a child, but he does not complain about that superfluous reference in the limitations
instruction. Appellant complains instead about the portion of the instruction that says
that the State is not bound by the specific dates alleged in the indictment. Appellant
argues that this language wrongly authorized the jury to return a conviction on the
charged offense based on any sexual conduct involving the complainant, even if that
conduct occurred when the complainant was fourteen years of age or older.

      We do not share appellant’s interpretation of the limitations instruction. Even
though the instruction provides that the State is not bound by the specific dates
alleged in the indictment (“on or about October 12, 2011 through November 17,
2011”), nothing in the instruction provides that the jury can base a conviction on acts
of sexual abuse that occurred after the complainant’s fourteenth birthday (on April
14, 2012). If the instruction had that effect, then its internal reference to “the offense”
would be inconsistent with the essential elements that appear in both the abstract
portion of the charge and in the application paragraph. There is no textual basis for
believing that the instruction created such an inconsistency, especially when the
instruction does not mention or single out any elements of the offense. As we read
it, the instruction effectively authorized a conviction if the jury found that appellant
committed the requisite acts of sexual abuse at any point before the complainant’s
fourteenth birthday, which is necessarily within the period of limitations and before
the return of the indictment.

      Appellant contends that a different reading is compelled by our decision in
Mendoza v. State, No. 14-15-00537-CR, 2016 WL 3341107 (Tex. App.—Houston
[14th Dist.] June 14, 2016, no pet.) (mem. op., not designated for publication), where
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we found error in a jury charge that contained a substantially similar limitations
instruction.

       As an initial matter, we must observe that Mendoza is an unreported decision,
and therefore, it has no precedential value. See Tex. R. App. P. 47.7(a); Gonzales v.
State, 474 S.W.3d 345, 350 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d).

       But even if Mendoza were reported and had precedential value, it would not
support appellant’s position because it is distinguishable on the facts. In that case,
which involved the very same offense that we consider here, we held that the
application paragraph was erroneous because it authorized a conviction based on
acts of sexual abuse that occurred before September 1, 2007, the effective date of
the statute. See Mendoza, 2016 WL 3341107, at *4–5. We further held that the
limitations instruction added to the charge error because it failed to advise the jury
that the conviction could only be based on acts that were committed on or after
September 1, 2007. Id.

       The concerns in Mendoza are not present in this case. The evidence was
undisputed that appellant did not meet the complainant until 2011, which is after the
effective date of the statute. And unlike the charge in Mendoza, this charge did not
allege that any acts of sexual abuse were committed before the effective date of the
statute.

       We conclude that the trial court did not err in its submission of the limitations
instruction.

II.    “Child” Definition, Unanimity Instruction, and Application Paragraph

       Appellant complains of three more charge errors in his brief, but he addresses
them as factors in his harm analysis. We address these complaints as independent
errors, not as factors in a harm analysis.

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      The first of these complaints arises out of two separate portions of the charge.
The first portion is from the abstract, which provides that the offense is not complete
unless “the victim is a child younger than 14 years of age.” The second portion is a
definition of the word “child,” which appears later in the charge as “a person younger
than seventeen years of age.” Appellant argues that the latter definition was
gratuitous and misleading insofar as it suggested that a conviction could be had if
the acts of sexual abuse occurred after the child turned fourteen.

      The second complaint focuses on a unanimity instruction, which provides as
follows:

      In order to find the defendant guilty of the offense of continuous sexual
      abuse of a young child, you 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. However, in order
      to find the defendant guilty of the offense of continuous sexual abuse
      of a young child, you 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.

      This instruction identifies several elements of the offense, but it makes no
reference to the age of the victim, which was the most hotly contested element in the
entire trial. Appellant argues that the omission renders the instruction erroneous
because the jury may have believed from the omission that it was not required to
agree unanimously that the complainant was younger than fourteen years of age at
the time of the sexual abuse.

      The third complaint focuses on the application paragraph, which contains a
similar omission. The beginning of this paragraph alleges that appellant committed
“at least two acts of sexual abuse against a child younger than fourteen years of age,”
but when the paragraph subsequently mentions the complainant by name, it does not
specifically require the jury to find that the complainant was younger than fourteen

                                          10
years of age at the time of the sexual abuse. Appellant argues that the paragraph
effectively presumes that the complainant was younger than fourteen years of age at
the time of the sexual abuse.

       For the purposes of argument, we will assume without deciding that these
three portions of the charge are erroneous and proceed to an analysis of harm. Under
Almanza, the degree of harm necessary for reversal depends on whether the
defendant objected to the charge error. See Almanza, 686 S.W.2d at 171. Because
appellant did not object here, he can obtain reversal only if the error caused him
egregious harm. Id.

       Harm is egregious when the error deprives the defendant of a fair and
impartial trial. See Orellana v. State, 489 S.W.3d 537, 543 (Tex. App.—Houston
[14th Dist.] 2016, pet. ref’d). The defendant suffers such a deprivation when the
error affects the very basis of the case, denies the defendant a valuable right, or
vitally impacts a defensive theory. Id. The harm must be actual, not merely
theoretical. Id.

       We assay harm in light of the entire jury charge, the state of the evidence, the
arguments of counsel, and any other relevant information revealed by the record of
the trial as a whole. Id.

       We have already discussed many pertinent aspects of the jury charge. The
abstract portion and the beginning of the application paragraph clearly instructed the
jury that a conviction could not be had unless the victim was younger than fourteen
years of age at the time of the sexual abuse. Other boilerplate instructions provided
that the prosecution had the burden of proving every element of the offense beyond
a reasonable doubt, and that the jury must unanimously agree upon a verdict.




                                          11
      We have also discussed much of the evidence already. As we explained in our
analysis of appellant’s other issues, there was evidence that the sexual abuse began
when the complainant was thirteen years old and that it continued until she was
fifteen years old. Appellant did not try to develop any evidence that the abuse
specifically began after the complainant’s fourteenth birthday. His primary
defensive theory was that the abuse never happened at all, and he attempted to sow
doubt in the prosecution’s case by showing that the complainant had a history of
mental problems and that she gave inconsistent statements to investigators, including
outright denials of abuse.

      As for the arguments of counsel, the prosecutor asserted in his opening
statement that the complainant was thirteen years old when the abuse started.
Defense counsel addressed the complainant’s credibility in his opening statement,
rather than her age. He focused on her troubled past and her initial denials of abuse.

      Defense counsel took a different approach in his closing statement, where he
began by addressing the complainant’s age: “This indictment alleges that these acts
happened when she was younger than 14, back in October through November of
2011. What evidence do we have of that? That’s the question you have to ask
yourself.” Defense counsel also addressed the complainant’s credibility, but counsel
signaled that the age of the complainant was the critical question because the jury
had the option of convicting appellant of a lesser-included offense: “So what you
have to do is ask yourself, do I really believe that it happened back then in 2011, in
which case it could be a continuous, or did it happen after 2012, after April of 2012,
in which case it’s just an aggravated sexual assault, or did it happen at all. That’s
what you have to ask yourself.”

      The prosecutor closed last, and he again asserted that the complainant was
thirteen years old at the time of the abuse. The prosecutor also reminded the jury that

                                          12
appellant was the complainant’s first love and the first person with whom she ever
had sex. The implication of these remarks is that the complainant was unlikely to
misremember when the abuse first started and that she could be trusted when she
testified that the abuse began “a few months” after her summer trip, when she was
thirteen years old.

      Based on the record of the trial as a whole, the jury was amply informed that
a conviction could not be had unless the complainant was younger than fourteen
years of age at the time of the sexual abuse. The presumed charge errors did not
affect the very basis of the case, deny appellant of a valuable right, or vitally impact
a defensive theory. We therefore conclude that those errors, if any, were harmless.

                                   CONCLUSION

      The trial court’s judgment is affirmed.




                                        /s/     Tracy Christopher
                                                Justice


Panel consists of Chief Justice Frost and Justices Christopher and Jamison.
Do Not Publish — Tex. R. App. P. 47.2(b).




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