                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-18-00035-CR

GUADALUPE ROBERTO MUNOS,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2016-670-C2


                           MEMORANDUM OPINION


      Guadalupe Roberto Munos was convicted of one count of continuous sexual abuse

of a young child and one count of indecency with a child by contact. See TEX. PENAL CODE

ANN. §§ 21.02(b); 21.011(a)(1). He was sentenced to 30 years in prison and 3 years in

prison, respectively. Because the evidence was not insufficient to support his convictions

on both counts and because potential error in the jury charge was improperly briefed, the

trial court’s judgments are affirmed.
BACKGROUND

       CC was sexually abused over a period of years by Munos, her brother. CC lived

at various residences with her father who was a maintenance supervisor. They moved

around a lot. Initially, Munos lived with them; but when he graduated from high school,

he moved out and would visit the residences in which CC and her father lived.

SUFFICIENCY OF THE EVIDENCE

       In his first two issues, Munos argues the evidence is insufficient to support his

convictions for both continuous sexual abuse of a young child (Count I) and indecency

with a child by contact (Count II). He attacks specific elements of those offenses.

       The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

              When addressing a challenge to the sufficiency of the evidence, we
       consider whether, after viewing all of the evidence in the light most
       favorable to the verdict, any rational trier of fact could have found the
       essential elements of the crime beyond a reasonable doubt. Jackson v.
       Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. State,
       514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the
       appellate court to defer "to the responsibility of the trier of fact fairly to
       resolve conflicts in the testimony, to weigh the evidence, and to draw
       reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at
       319. We may not re-weigh the evidence or substitute our judgment for that
       of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
       2007). The court conducting a sufficiency review must not engage in a
       "divide and conquer" strategy but must consider the cumulative force of all
       the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate
       about the meaning of facts or evidence, juries are permitted to draw any
       reasonable inferences from the facts so long as each inference is supported
       by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex.
       Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214
       S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder


Munos v. State                                                                                 Page 2
       resolved any conflicting inferences from the evidence in favor of the verdict,
       and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex.
       Crim. App. 2012). This is because the jurors are the exclusive judges of the
       facts, the credibility of the witnesses, and the weight to be given to the
       testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
       Direct evidence and circumstantial evidence are equally probative, and
       circumstantial evidence alone may be sufficient to uphold a conviction so
       long as the cumulative force of all the incriminating circumstances is
       sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809
       (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.

              We measure whether the evidence presented at trial was sufficient
       to support a conviction by comparing it to "the elements of the offense as
       defined by the hypothetically correct jury charge for the case." Malik v.
       State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
       correct jury charge is 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." Id.; see
       also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law
       as authorized by the indictment" includes the statutory elements of the
       offense and those elements as modified by the indictment. Daugherty, 387
       S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).

Continuous Sexual Abuse

       The offense of continuous sexual abuse of a young child has five elements: (1) a

person (2) who is seventeen or older at the time of the commission of each of the acts (3)

commits a series of two or more acts of sexual abuse (4) during a period of thirty or more

days, and (5) at the time of the commission of each of the acts the victim is younger than

fourteen. See TEX. PENAL CODE ANN. § 21.02(a), (b); Hines v. State, 551 S.W.3d 771, 781-82

(Tex. App.—Fort Worth 2017, no pet.). In this case, the indictment alleged six acts of



Munos v. State                                                                          Page 3
sexual abuse. CC testified about many specific acts of sexual abuse to support the acts

alleged.

       Munos initially questions the State’s proof that Munos was 17 or older at the time

the acts of sexual abuse occurred. He narrows the acts of sexual abuse testified to by CC

to only three which could potentially support the offense because, he asserts, these were

the only acts where he was 17 at the time of the commission of those acts. The three acts

Munos focuses on are: 1) an incident at the Saddle Brook residence where Munoz tried

to penetrate CC vaginally and anally; 2) an incident at the Live Oak residence where

Munoz touched CC’s vagina over her clothes; and 3) an incident at the Enclave residence

where Munoz tried to penetrate CC vaginally while CC was laying on the floor.

       Munos argues that the evidence to support the Live Oak and the Saddle Brook

incidents is insufficient, and thus, neither is an act of sexual abuse which supports the

conviction. He admits, however, that the Enclave incident is sufficient evidence of one

act of sexual abuse; but, his argument continues, because that incident is the only act of

sexual abuse which supports his conviction, the evidence, in total, is insufficient to

support his conviction for continuous sexual abuse of a young child.

       We first discuss whether the evidence to support the Live Oak incident was

sufficient as an act of sexual abuse. The incident alleges an offense of indecency with a

child by contact which is an act of sexual abuse within the offense of continuous sexual

abuse of a young child. See TEX. PENAL CODE ANN. § 21.02(c)(2). A person commits the

offense of indecency with a child by contact if the person engages in sexual contact with

a child younger than 17 years of age or causes a child younger than 17 years of age to

Munos v. State                                                                      Page 4
engage in sexual contact. See TEX. PENAL CODE ANN. § 21.11(a)(1).1 Sexual contact means

any touching by a person, including touching through clothing, of the anus, breast, or

any part of the genitals of a child if committed with the intent to arouse or gratify the

sexual desire of any person. Id. (c)(1).

        Munos asserts the State cannot prove his contact with CC was made with the

required specific intent to arouse and gratify his sexual desire because his intent cannot

be inferred from the act of sexual contact, itself. Thus, his argument continues, this

incident is not sufficient evidence of a second act of sexual abuse to support his conviction

under Count I. We disagree with Munos.

        CC testified that Munos hugged her from behind and grabbed her “vagina…over

[her] clothes.” Although there is no direct evidence other than the touching of CC’s

vagina over her clothes that Munos acted with the intent to arouse and gratify his sexual

desire, contrary to his argument, the requisite specific intent can be inferred from his

conduct alone. See Abbott v. State, 196 S.W.3d 334, 340 (Tex. App.—Waco 2006, pet. ref’d).

Accordingly, the jury could infer the requisite intent from Munos’s conduct and, thus,

find this essential element beyond a reasonable doubt. This incident is sufficient evidence

of an act of sexual abuse.

        Because we have rejected the only argument Munos asserts for why the evidence

was insufficient to support the Live Oak incident as an act of sexual abuse, and because



1
  However, to be considered one of the two or more acts of “sexual abuse” under the statute for which
Munos was convicted, the State was required to prove the victim was younger than 14 years of age at the
time of the act. TEX. PENAL CODE ANN. § 21.02 (a), (b). Munos does not attack the State’s proof regarding
CC’s age in this incident.

Munos v. State                                                                                    Page 5
Munos admitted that the Enclave incident was supported by sufficient evidence of an act

of sexual abuse, the jury could have found beyond a reasonable doubt that at least two

acts of sexual abuse were proven by the State. We need not discuss whether the evidence

regarding the Saddle Brook or any other incident was sufficient as an act of sexual abuse.

       Accordingly, the evidence is sufficient to support Munos’s conviction as to Count

I, and Munos’s first issue is overruled.

Indecency with a Child

       Next, Munos asserts that the State failed to prove the evidence was sufficient to

support Count II, the offense of indecency with a child by contact, because the required

specific intent to arouse and gratify his sexual desire could not be inferred from the act of

contact itself. The intent to arouse or gratify the sexual desire of any person is an essential

element of the offense of indecency with a child and can be inferred from the defendant’s

conduct alone. See TEX. PEN. CODE ANN. § 21.11(a)(1), (c)(1); Abbott v. State, 196 S.W.3d

334, 340 (Tex. App.—Waco 2006, pet. ref’d). CC testified that Munos hugged her from

behind and grabbed her “breast area…over [her] clothes.” Because the requisite specific

intent can be inferred from Munos’s conduct alone, the jury could infer the requisite

intent from that conduct and, thus, find this essential element beyond a reasonable doubt.

       Accordingly, because we have rejected the only argument Munos asserts for why

the evidence was insufficient to support the conviction for Count II, Munos’s second issue

is overruled.

JURY CHARGE ERROR

       Lastly, Munos asserts that the trial court erred by including an instruction in the

Munos v. State                                                                           Page 6
jury charge that the State did not have to prove the exact date as alleged in the indictment

where the State was required to prove the acts were committed beginning on or after the

day that Munos turned 17 years-old, causing him egregious harm.2

       When an appellant complains of jury charge error, we first determine whether the

charge contained error. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015); Almanza

v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). If error exists, we then

analyze the harm resulting from the error. Id. If the error was preserved by objection,

any error that is not harmless will constitute reversible error. Id. If the error was not

preserved by objection, the error will not result in reversal of the conviction without a

showing of egregious harm. Id. Egregious harm is harm that deprives a defendant of a

"fair and impartial trial." Id. Munos did not object to the jury charge; thus, if we find that

the jury charge was erroneous, we will consider the effect of the error under the egregious

harm standard.

       The alleged offending instruction is as follows:

       You are further charged that it is the law in this case that the State is not
       bound to prove the exact date alleged in the indictment but may prove the
       offenses, if any, to have been committed at any time prior to the filing of the
       indictment.

Munos contends this instruction is erroneous because “it is an inapplicable statement of

the law in this case because [he] could not even be held criminally responsible for the

alleged conduct until he was 17, which the State was bound to prove.” (Emphasis in




2
 Munos’s complaint is confined to how this instruction impacts his conviction on Count I. He has no
complaint about this instruction as it applies to Count II.

Munos v. State                                                                              Page 7
original). He asserts, “the trial court’s instruction is error in a case, like this, where ages

of both the defendant and complainant are elements of the offense and there is a

narrowed window of time during which the State is able to prove such.” These are the

only statements made by Munos in his brief regarding why the trial court’s instruction

was erroneous, and he provides no authority to support them.

       The State is not required to prove an offense was committed on or about the date

alleged in the indictment and can prove the offense was committed on any date prior to

the return of the indictment and within the period of limitations. See Klein v. State, 273

S.W.3d 297, 304 n. 5 (Tex. Crim. App. 2008). Consequently, it is not incorrect to instruct

jurors, even in a prosecution for continuous sexual abuse of a young child, that the State

is not bound to prove the exact dates alleged in the indictment. Martin v. State, 335 S.W.3d

867, 874 (Tex. App.—Austin 2011, pet. ref’d). Without any authority to support Munos’s

complaint, we are at a loss to understand what makes this particular instruction in this

charge erroneous.

       Accordingly, we find this issue to be improperly briefed, and it presents nothing

for our review. See TEX. R. APP. P. 38.1(i) (argument must contain appropriate citations to

authorities); Jenkins v. State, 493 S.W.3d 583, 615 n. 90 (Tex. Crim. App. 2016) (issues

overruled because no authority cited for position that the trial court erred by failing to

provide a certain instruction). See also Ferreira v. State, 514 S.W.3d 299, 301-303 (Tex.

App.—Houston [14th] 2016, no pet.) (where appellant did not identify what part of the

party liability portion of the charge was erroneous and case authority cited did not

support the argument, complaint not adequately briefed).

Munos v. State                                                                           Page 8
       Munos’s third issue is overruled.

CONCLUSION

       Having overruled each issue on appeal, we affirm the trial court’s judgments.



                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed November 6, 2019
Do not publish
[CRPM]




Munos v. State                                                                    Page 9
