             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00184-CR
     ___________________________

  CRISTOBAL JOSE OLAGE, Appellant

                     V.

          THE STATE OF TEXAS


On Appeal from Criminal District Court No. 4
           Tarrant County, Texas
        Trial Court No. 1538442R


Before Sudderth, C.J.; Bassel and Womack, JJ.
  Memorandum Opinion by Justice Bassel
                           MEMORANDUM OPINION

                                    I. Introduction

      A jury convicted Appellant Cristobal Jose Olage of continuous sexual abuse of

a young child and indecency with a child and assessed his punishment at confinement

for forty-five years and twenty years, respectively. The trial court sentenced him

accordingly. On appeal, Olage does not challenge the sufficiency of the evidence

supporting his convictions.1 Instead, in a single issue, Olage argues that the trial court

erred by failing to quash his indictment. Olage contends that the trial court should

have quashed his indictment because the continuous-sexual-abuse-of-a-young-child

statute is unconstitutional in that it (1) violates the jury-unanimity requirement of the

Texas constitution; (2) violates the due-course-of-law requirement under the Texas

constitution for the same reason; and (3) as applied, it allowed the State to indict

Olage on charges that did not give him sufficient notice of the claims. Because we

have consistently held that the continuous-sexual-abuse-of-a-young-child statute does

not violate the jury-unanimity requirement of the Texas constitution and thus does

not run afoul of the due-course-of-law requirement and because the indictment gave

Olage sufficient notice of the charges against him and supplied a date range for those

charges, we affirm.



      1
       Because Olage does not challenge the sufficiency of the evidence to support
his convictions, we omit a factual background.


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  II. Section 21.02 Does Not Violate the Jury-Unanimity Requirement or the
            Due-Course-of-Law Provision of the Texas Constitution

      Olage contends that section 21.02 of the Texas Penal Code, which is the statute

defining the offense of continuous sexual abuse of a young child, is unconstitutional

because it allows a nonunanimous jury verdict. See Tex. Penal Code Ann. § 21.02.

Olage does not mention that this court has already held that the statute does not

violate a constitutional right to a unanimous jury verdict. See Pollock v. State, 405

S.W.3d 396, 405 (Tex. App.—Fort Worth 2013, no pet.). Olage’s argument does not

persuade us to depart from our precedent. See id.; see also Waters v. State, No. 02-17-

00368-CR, 2018 WL 6565939, at *1 (Tex. App.—Fort Worth Dec. 13, 2018, no pet.)

(mem. op., not designated for publication); Harris v. State, No. 02-17-00278-CR, 2018

WL 3153605, at *2 (Tex. App.—Fort Worth June 28, 2018, pet. ref’d) (mem. op., not

designated for publication). See generally Jacobsen v. State, 325 S.W.3d 733, 736–39 (Tex.

App.—Austin 2010, no pet.) (distinguishing Richardson v. United States, 526 U.S. 813,

119 S. Ct. 1707 (1999), which Olage relies on). Because we have held that section

21.02 does not violate the jury-unanimity requirement and because Olage does not

assert any other basis for his due-course-of-law argument, we overrule his first and

second arguments. See Fulmer v. State, 401 S.W.3d 305, 313 (Tex. App.—San Antonio

2013, pet. ref’d) (holding that because section 21.02(d) requires that jurors

unanimously agree as to the means, but does not require unanimity as to which

specific acts were committed, section 21.02 does not violate due course of law).


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     III. The Trial Court Did Not Err by Failing to Quash the Indictment

      In his third argument under his sole issue, Olage argues that the trial court

erred by not quashing the indictment because it failed to give him proper notice so

that he could prepare a defense.

      An accused is guaranteed the right to be informed of the nature and cause of

the accusations against him in all criminal actions. See U.S. Const. amend. VI; Tex.

Const. art. I, § 10; State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). The

indictment must be specific enough to inform the defendant of the nature of the

accusations against him so that he may prepare a defense. See Smith v. State, 297

S.W.3d 260, 267 (Tex. Crim. App. 2009); Moff, 154 S.W.3d at 601. Generally, a

charging instrument that tracks the language of a criminal statute possesses sufficient

specificity to provide a defendant with notice of a charged offense. State v. Edmond,

933 S.W.2d 120, 128 (Tex. Crim. App. 1996). But when a statute defines the manner

or means of commission in several alternative ways, an indictment will fail for lack of

specificity if it neglects to identify which of the statutory means it addresses. Id.; see

State v. Barbernell, 257 S.W.3d 248, 251 (Tex. Crim. App. 2008). The sufficiency of an

indictment is a question of law and is reviewed de novo. See Smith, 297 S.W.3d at 267.

      For the offense of continuous sexual abuse of a young child, the act-of-sexual-

abuse element is defined as any act that is, among other things, a violation of one or

more of the following penal laws: indecency with a child under section 21.11(a)(1) or

aggravated sexual assault under penal code section 22.021. See Tex. Penal Code Ann.

                                            4
§ 21.02(c)(2), (4). The penal code identifies several alternative means of committing

aggravated sexual assault—including intentionally or knowingly penetrating the sexual

organ of a child, causing the mouth of a child to contact the sexual organ of another

person, or causing the sexual organ of a child to contact the mouth of another person.

See id. § 22.021(a)(1)(B).

       In this case, the original indictment tracked the language of section 21.02 and

alleged that Olage committed the offense of continuous sexual abuse of a young child

by committing aggravated sexual assault, indecency with a child, or both; specifically,

the original indictment alleged in count 1

       THAT CRISTOBAL JOSE OLAGE, HEREINAFTER CALLED
       DEFENDANT, IN THE COUNTY OF TARRANT, STATE OF
       TEXAS, ON OR ABOUT THE 17TH DAY OF JANUARY 2013
       THROUGH THE 21ST DAY OF FEBRUARY 2017, DID DURING
       A PERIOD OF TIME THAT IS 30 DAYS OR MORE IN
       DURATION, COMMIT TWO OR MORE ACTS OF SEXUAL
       ABUSE, NAMELY: AGGRAVATED SEXUAL ASSAULT OF A
       CHILD:   BY CAUSING THE SEXUAL ORGAN OF THE
       DEFENDANT TO CONTACT THE MOUTH OF [JENNIFER],[2]
       AND/OR BY CAUSING THE FINGER OF THE DEFENDANT
       TO PENETRATE THE SEXUAL ORGAN OF [JENNIFER];
       AND/OR INDECENCY WITH A CHILD: BY CAUSING
       [JENNIFER] TO TOUCH ANY PART OF THE GENITALS OF
       THE DEFENDANT, AND/OR BY CAUSING THE DEFENDANT
       TO TOUCH ANY PART OF THE GENITALS OF [JENNIFER],
       AND AT THE TIME OF THE COMMISSION OF EACH OF
       THESE ACTS OF SEXUAL ABUSE THE DEFENDANT WAS 17
       YEARS OF AGE OR OLDER AND [JENNIFER] WAS YOUNGER
       THAN 14 YEARS OF AGE[.]

      To protect the victim’s anonymity, we use an alias. See McClendon v. State, 643
       2

S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).


                                             5
Olage filed a motion to quash the indictment, alleging that it failed to state how the

offenses of indecency with a child and aggravated sexual assault of a child were

committed and that it failed to specify a date range for the requisite thirty days.

Eleven days before trial, the State presented a “direct reindictment” with substantially

similar language:

      THAT CRISTOBAL JOSE OLAGE, HEREINAFTER CALLED
      DEFENDANT, IN THE COUNTY OF TARRANT, STATE OF
      TEXAS, ON OR ABOUT THE 17TH DAY OF JANUARY 2013
      THROUGH THE 21ST DAY OF FEBRUARY, 2017, DID DURING
      A PERIOD OF TIME THAT IS 30 DAYS OR MORE IN
      DURATION, COMMIT TWO OR MORE ACTS OF SEXUAL
      ABUSE, NAMELY: AGGRAVATED SEXUAL ASSAULT OF A
      CHILD UNDER 14, BY CAUSING THE SEXUAL ORGAN OF
      [JENNIFER] TO CONTACT THE SEXUAL ORGAN OF THE
      DEFENDANT, AND/OR BY CAUSING THE MOUTH OF
      [JENNIFER] TO CONTACT THE SEXUAL ORGAN OF THE
      DEFENDANT, AND/OR INDECENCY WITH A CHILD, BY
      TOUCHING THE GENITALS OF [JENNIFER], AND/OR BY
      CAUSING [JENNIFER] TO TOUCH THE GENITALS OF THE
      DEFENDANT, AND AT THE TIME OF THE COMMISSION OF
      EACH OF THESE ACTS OF SEXUAL ABUSE THE DEFENDANT
      WAS 17 YEARS OF AGE OR OLDER AND [JENNIFER] WAS
      YOUNGER THAN 14 YEARS OF AGE[.] [Emphasis added to show
      portions that were changed.]

Before voir dire commenced, the trial court heard Olage’s motion to quash and

denied the motion.

      The direct reindictment alleged the specific means by which Olage committed

the offense of continuous sexual abuse of a young child and alleged the means by

which he committed the individual sexual abuse acts of aggravated sexual assault of a

child and indecency with a child.        See Tex. Penal Code Ann. §§ 21.11(a)(1),

                                           6
22.021(a)(1)(B). The State was not required to allege a specific date in the indictment,

and the “on our about” language was sufficient. See Sledge v. State, 953 S.W.2d 253,

256 (Tex. Crim. App. 1997). Thus, the direct reindictment gave sufficient notice to

allow Olage to prepare a defense. See Smith, 297 S.W.3d at 267; Moff, 154 S.W.3d at

601; Pollock, 405 S.W.3d at 404. Accordingly, we overrule his final argument.

                                    IV. Conclusion

      Having considered and rejected the three arguments that Olage makes in his

sole issue, we overrule his sole issue and affirm the trial court’s judgments.



                                                       /s/ Dabney Bassel
                                                       Dabney Bassel
                                                       Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: March 14, 2019




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