Affirmed as Modified and Opinion Filed August 26, 2013




                                         S In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas

                                      No. 05-12-00377-CR

                             MANUEL LEIS PEREZ, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 3
                                   Dallas County, Texas
                            Trial Court Cause No. F10-31001-J

                                          OPINION
                         Before Justices Bridges, FitzGerald, and Myers
                                 Opinion by Justice FitzGerald
       A jury convicted appellant of continuous sexual abuse of a young child. The trial judge

heard punishment evidence and assessed punishment at forty years’ imprisonment. Appellant

asserts fourteen issues on appeal, generally categorized as challenges to the jury charge, the

denial of his request for a mistrial, the denial of his motion to quash the indictment, the

sufficiency of the evidence, and an allegedly ambiguous verdict. In a cross-point, the State

requests that the judgment be modified to reflect that the trial court assessed punishment. We

modify the trial court’s judgment, and as modified, affirm.

                                       I. BACKGROUND

        S.T. was born in 1996, and never had a relationship with her biological father. Her

mother Brenda married Raymond Cruz when S.T. was six, but Cruz never accepted S.T. as his
daughter. In the summer of 2009, Cruz kicked thirteen-year-old S.T. out of the house and S.T.

went to live with her aunt Prysila and Prysila’s husband, appellant.

       While living with Prysila and appellant, S.T. watched a movie called “Towel Head” with

them about a thirteen-year-old girl doing sexual things with her older, married neighbor. After

the movie ended, and Prysila left the room, appellant asked S.T. about a sexual scene in the

movie. Sometime later in the summer of 2009, appellant began sexually abusing S.T.

        On the first occasion of sexual abuse, S.T. was lying on the couch in the living room

watching television at 3:00 or 4:00 a.m. when appellant came down the stairs. Appellant was

breathing heavily and asked her if she had ever seen a penis. When S.T. responded that she had

not, appellant pulled his penis out and told her to look at it. Appellant next told S.T. to kiss it and

grabbed the back of her head and pushed her head down on his penis multiple times. While

appellant’s penis was inside S.T.’s mouth, “sperm came out” into her mouth. Appellant also

rubbed the outside of S.T.’s vagina with his fingers before telling her to go sleep in his

daughter’s room.

       The remainder of the summer passed without any further sexual abuse. In mid-August

2009, Brenda was planning to leave Cruz and took S.T. to live with David, the man she was

dating. S.T. lived with David and his two teenage daughters from mid-August until mid-October

2009 and attended Lamar Middle School in Lewisville. In mid-October, Brenda realized that she

was not brave enough to leave Cruz, and she brought S.T. home to live with them in Cedar Hill.

       At appellant’s suggestion, Brenda transferred S.T. to Jackson Middle School in Grand

Prairie, so appellant could take S.T. to and from school. In October, Brenda began taking S.T. to

appellant and Prysila’s house before school, and appellant drove S.T. and his sons to school.

One morning, appellant did not take S.T. directly to school. Instead, he took her back to his

house, led her to his bedroom, removed their pants and underwear, and put his penis inside her

                                                 –2–
vagina. S.T. flinched from the pain caused by appellant’s penis in her vagina and started

bleeding. When appellant removed his penis from S.T.’s vagina, he ejaculated onto the bed.

Afterward, appellant took S.T. to school.

       Appellant returned to his house with S.T. and put his penis in her vagina “mostly every

day in the morning” before school. S.T. testified that this happened more than ten times.

Additionally, appellant “sometimes” put his mouth on her vagina, and appellant made S.T. put

her mouth and her hands on his penis “most” mornings as well. S.T. explained that appellant

made her move her hands or mouth until “sperm” came out and told her to swallow it.

       Appellant also abused S.T. after school at his place of employment: he told a woman at

the office that she could leave and took S.T. into his office. Appellant showed S.T. pornography

on his laptop computer, including pornography featuring people having sex with animals. While

watching the pornography, appellant unzipped S.T.’s jeans, placed a little, red vibrator on her

vagina, and kissed her “in the mouth.” Appellant also put his penis inside S.T.’s vagina on the

floor of his office. On other occasions, appellant drove to the parking lot of Home Depot and

Chili’s or a nearby wooded area before or after S.T.’s school day to commit sexual acts. He

touched her vagina with his hands in the parking lot before school, and he touched her vagina

with a “dildo” in the wooded area one afternoon.

        When asked if appellant used the “dildo” on her at other times, S.T. testified that

appellant used it on her when they were in his bedroom before school, and would place the

“dildo” inside her vagina. Appellant kept the “dildo” and vibrator in a red shoe box in his closet.

Appellant told S.T. not to tell anyone about their activities or his daughter would not have a dad.

This made S.T. sad.

       The first person S.T. told about the abuse was her aunt Prysila. Appellant and Prysila

hosted a New Year’s party on December 31, 2009. S.T. and another girl drank alcohol during

                                               –3–
the party, and S.T. became intoxicated. She was in the restroom when Prysila entered the room,

crying. When Prysila told her that appellant said he had found S.T. touching herself on the sofa

one night, S.T. told her aunt “what really happened.” Appellant later left to drive someone home

after the party ended, and while he was gone, Prysila took S.T. to the bathroom and showered

with her before dressing herself and S.T. in lingerie. Appellant returned home, talked to Prysila,

and then they took S.T. into their bedroom. Prysila used the “dildo” on S.T.’s vagina and had

S.T. use it on her vagina while appellant watched.

       Appellant and Prysila apologized to S.T. the next day and said that it would not happen

again. Prysila did not have any further sexual contact with S.T., but appellant continued having

sex with her after he promised that he would not do anything else.

       On January 15, 2010, appellant took S.T. out of school and drove her to a motel. He told

her that they were going to the motel to have sex and that he planned to bring an ex-girlfriend to

join them. The other woman did not meet them at the hotel, but appellant put his penis inside

S.T.’s anus, causing her pain. A motel receipt admitted as evidence during trial showed that

appellant rented a room at the La Hacienda Motel in Grand Prairie on January 15, 2010.

Additionally, school records from Jackson Middle School indicated that S.T. was out of her

regular classroom in “some office” during sixth period on January 15, 2010, and the custodian of

records acknowledged that it was possible that a student could leave the school after visiting the

nurse’s office.

       At the end of January 2010, appellant texted Brenda to say that he would not be able to

take S.T. to school anymore. Around the same time, Brenda noticed that S.T. was crying a lot.

S.T. did not try to tell anyone about the abuse after she told Prysila, but she wrote a letter in a

notebook. The letter stated that someone was touching her and that she felt bad but did not name

anyone. Brenda found the letter and asked S.T. about it, but S.T. became nervous and would not

                                               –4–
talk about it. Brenda then told S.T.’s grandmother. When the grandmother asked S.T. about the

letter, S.T. told her what appellant had done to her, but she did not tell her about what had

happened with Prysila. The grandmother called the police.

        On February 23, 2010, Detective Christy Martinez of the Grand Prairie Police

Department’s Child Sex Unit met with the grandmother to take her statement about S.T.’s

outcry. Detective Martinez contacted Brenda to schedule a forensic interview at the Irving

Family Advocacy Center, and she sent S.T. to the Referral and Evaluation of At Risk Children

(“REACH”) program at Children’s Medical Center in Dallas for a physical examination. The

examination revealed an absence of tissue from an area of S.T.’s vaginal opening that was

consistent with penetration. At trial, Dr. Matthew Cox, director of the REACH program, testified

that the injury to S.T.’s hymen would have caused bleeding.

       Detective Martinez obtained and executed a search warrant for appellant’s house. She

found a red shoe box in the master bedroom closet that contained the sex toys and a long brown

hair strand. After appellant was arrested, the acting forensic biology supervisor at the Southwest

Institute of Forensic Sciences (“SWIFS”) performed DNA testing on the vibrator and “dildo”

collected from appellant’s home. All of the genetic markers present in the samples from the

“dildo” and vibrator could be attributed to appellant, Prysila, and S.T.

       At trial, a children’s therapist testified about some concepts relating to child-sexual

abuse, including grooming, delayed outcry of abuse, and accidental disclosure. Additionally, she

testified about her experience as S.T.’s therapist. She testified that she had worked with over 300

children and that S.T. was “the child that has been the most hurt.” She testified that S.T. had not

disclosed the abuse by Prysila in any of their thirty-nine sessions, but that did not surprise her.

       Appellant did not present any evidence during the guilt-innocence phase of trial. After

hearing the court’s charge and closing arguments, the jury found appellant guilty of continuous

                                                 –5–
sexual abuse of a young child as alleged in the indictment. Subsequently, the trial court heard

punishment evidence and sentenced appellant to forty years’ imprisonment. This timely appeal

followed.

                                              II. ANALYSIS

A. Sufficiency of the Evidence

       In his first issue, appellant asserts the evidence is insufficient to support his conviction

for continuous sexual assault of a young child. Specifically, appellant contends the State

impermissibly relied on an act of anal penetration that occurred subsequent to S.T.’s fourteenth

birthday and was not alleged in the indictment. Appellant also asserts the evidence to corroborate

S.T.’s testimony was “ambiguous or tangential,” and there was a “mere modicum of proof of

sexual acts.”

       We review evidentiary sufficiency challenges under the Jackson v. Virginia standard. See

Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013). Under this standard, evidence is

insufficient to support a conviction if, considering all the record evidence in the light most

favorable to the verdict, no rational fact finder could have found that each essential element of

the charged offense was proven beyond a reasonable doubt. Laster v. State, 275 S.W.3d 512, 517

(Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

       We do not weigh any evidence or evaluate the credibility of any witnesses, as this was

the function of the fact finder. Williams, 235 S.W.3d at 750. Instead, we determine whether both

the explicit and implicit findings of the fact finder are rational by viewing all the evidence

admitted at trial in the light most favorable to the verdict and resolving any inconsistencies in the

evidence in favor of the verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992).

       To obtain a conviction, the State was required to prove beyond a reasonable doubt that,

during a period that was thirty or more days in duration, appellant committed two or more acts of

                                                –6–
sexual abuse and that, at the time of the commission of each of the acts of sexual abuse, appellant

was seventeen years of age or older and the victim was a child younger than fourteen years of

age. TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2012); Fulmer v. State, 401 S.W.3d 305,

305 (Tex. App.—San Antonio 2013, pet. ref’d); McMillian v. State, 388 S.W.3d 866, 870 (Tex.

App.—Houston [14th Dist.] 2012, no pet.). The indictment alleged that appellant:

               Then and there, intentionally and knowingly, during a period that was 30
               or more days in duration, when the defendant was 17 years of age or older,
               commit two or more acts of sexual abuse against [S.T.], a child younger
               than 14 years of age, hereinafter called complainant, namely by the
               contact between defendant’s hand and complainant’s genitals with the
               intent to arouse and gratify the sexual desire of defendant, and by contact
               between the hand of the complainant and the genitals of the defendant
               with the intent to arouse and gratify the sexual desire of the defendant, and
               by the penetration of the complainant’s female sexual organ by the
               defendant’s finger, and by the penetration of the complainant’s female
               sexual organ by the defendant’s sexual organ, and by the contact between
               the mouth of the defendant and the female sexual organ of the
               complainant, and by the contact and penetration of the mouth of the
               complainant by the sexual organ of the defendant, and by the penetration
               of the female sexual organ by an object, to wit: a sex toy.

       The record reflects that S.T. was born on January 5, 1996. S.T. was thirteen and appellant

was thirty-eight when the abuse began. S.T. testified that the first instance of abuse was in the

summer of 2009 when she first moved in with appellant and Prysila. Although there was a period

of time after the first instance when there was no abuse because S.T. was living elsewhere, the

abuse resumed in October 2009 when appellant began driving S.T. to school. S.T. described the

numerous acts of abuse that would occur “most mornings” before school, and testified that it

happened more than ten times.

       S.T. also described the sexual abuse that occurred in appellant’s office when he showed

her pornography on his laptop computer, and abuse that would occur in the Home Depot or

Chili’s parking lot or in a nearby wooded area. S.T. related that appellant would put his penis or

a sex toy in her vagina, and would sometimes put his mouth on her vagina. She further described


                                               –7–
how appellant would put her mouth and hands on his penis. S.T. also testified about the night of

December 31, 2009 when she was abused by both appellant and Prysila.

       Appellant’s complaints about the evidence as uncorroborated and elusive are without

merit. It is well-established that the testimony of a child victim alone is sufficient to support a

conviction for continuous sexual abuse. See Mathis v. State, 393 S.W.3d 332, 337 (Tex. App.—

Dallas 2013, no pet.); Connell v. State, 233 S.W.3d 460, 466 (Tex. App.—Fort Worth 2007, no

pet.); TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2012).

       Nonetheless, much of S.T.’s testimony was in fact corroborated. The sex toys were found

in a box in appellant’s closet as S.T. described. DNA evidence showed that the genetic markers

present in the samples from the sex toy could be attributed to appellant, S.T., and Prysila. The

medical evidence further established a lack of tissue from S.T.’s vaginal opening consistent with

penetration.

       Therefore, we conclude the evidence was sufficient to prove that appellant committed

two or more acts of sexual abuse over a period of thirty or more days prior to S.T.’s fourteenth

birthday. Appellant’s first issue is overruled.

B. Charge Error

       In issues two through seven, appellant complains of charge error. Specifically, he argues

the trial court erred: in failing to instruct the jury that any sexual abuse after S.T.’s fourteenth

birthday was irrelevant, in submitting aggravated sexual assault as the proposed offense of

conviction, and in authorizing conviction for conduct not alleged in the indictment. Appellant

also asserts that he was deprived of a unanimous verdict and that these alleged errors in

combination constitute cumulative error.

       Appellate review of claims of jury-charge error involves a determination of whether the

charge is erroneous and, if it is, a harm analysis. Kirsch v. State, 357 S.W.3d 645, 649 (Tex.

                                                  –8–
Crim. App. 2012). When, as in this case, no proper objection was made, the error requires

reversal only if it is so egregious and created such harm that the accused did not have a fair and

impartial trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on

reh’g); Ngo v. State, 175 S.W.3d 738, 744–45 (Tex. Crim. App. 2005).

   1. Unanimous Verdict

       We begin with appellant’s complaint that he was deprived of his right to a unanimous

verdict. Specifically, appellant complains the charge authorized a guilty verdict even if the jury

did not unanimously agree that appellant committed each separate act of sexual abuse or the

exact date those acts were committed.

       Texas courts employ a two-step analysis for unanimity challenges. See Jefferson v. State,

189 S.W.3d 305, 311 (Tex. Crim. App. 2006). The first step involves examination of the

language of the statute in question to determine whether the legislature intended to create

multiple, separate offenses of a single offense capable of being committed in different ways. Id.

Jury unanimity is required on the essential elements of the offense but is generally not required

on the alternative modes or means of commission. Id. The second step involves the

determination of whether dispensing with jury unanimity on the alternate mode or means of

commission violates due process. Id. at 312.

       Appellant was charged with violating section 21.02 of the penal code which provides in

pertinent part:

                  If a jury is the trier of fact, 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. 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.

TEX. PENAL CODE ANN. § 21.02(d). The jury was instructed in accordance with the statute.




                                                  –9–
       The Texas Constitution requires a unanimous verdict in all felony cases. TEX. CONST.

Art. V §13. But this Court has previously concluded that section 21.02 does not violate the

unanimity provision of the Texas Constitution. See Render v. State, 316 S.W.3d 846, 858 (Tex.

App.—Dallas 2010, pet. ref’d). Our sister courts are in agreement with this conclusion. See

Martin v. State, 335 S.W.3d 867, 872–73 (Tex. App.—Austin 2011, pet. ref’d); Casey v. State,

349 S.W.3d 825, 829–30 (Tex. App.—El Paso 2011, pet. ref’d); Kennedy v. State, 385 S.W.3d

729, 731–32 (Tex. App.—Amarillo 2012, pet. ref’d); McMillan v. State, 388 S.W.3d 866, 871–

72 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Specifically, courts have explained that it is

the commission of two or more acts of sexual abuse over the specified time period—that is, the

pattern of behavior or the series of acts—that is the actus reus element of the offense as to which

the jurors must be unanimous in order to convict. The individual acts of sexual abuse that make

up this pattern of behavior or series of acts are not themselves elements of the offense, but are

merely evidentiary facts, the manner and means by which the actus reus element is committed.

When there is evidence of more than two acts of abuse over the specified time period, section

21.02(d) makes it clear that the jurors need not agree as to which individual acts were committed

so long as they agree that the defendant committed at least two. Render, 316 S.W.3d at 857–58;

Casey, 349 S.W.3d at 829; Martin, 335 S.W.3d at 872–73. Thus, Texas intermediate courts have

routinely held that the individual acts of sexual abuse are manner and means, not an element of

the offense, and section 21.02 does not violate the jury unanimity requirement. See Render, 316

S.W.3d at 857–58; Casey, 349 S.W.3d at 829; Martin, 335 S.W.3d at 872–73. Dispensing with

jury unanimity on the underlying acts of sexual abuse does not violate due process or due course

of law. Render, 316 S.W.3d at 857–58; see also Reckart v. State, 323 S.W.3d 588, 600–01 (Tex.

App.—Corpus Christi 2010, pet ref’d).




                                              –10–
       Here, appellant was charged with the offense of continuous sexual abuse of a young

child. This offense consists of the following elements: (1) “two or more acts of sexual abuse” (2)

during a period of thirty or more days; (3) by a defendant who was at least seventeen years old at

the time of each act of sexual abuse; and (4) a victim who is a child younger than fourteen years

old. TEX. PENAL CODE ANN. § 21.02(b). Indecency with a child and aggravated sexual assault, as

charged by the indictment, are alternative methods, or the “manner and means,” of committing

the element of “two or more acts of sexual abuse.” See Render, 316 S.W.3d at 857. Therefore,

unanimity was required only as to a finding that appellant committed two or more acts of sexual

abuse—not as to which specific acts he committed. See Render, 316 S.W.3d at 857; Casey, 349

S.W.3d at 829–30; Martin, 335 S.W.3d at 872–73. The trial court did not err in so instructing the

jury. Appellant’s fourth issue is overruled.

   2. Conduct Not Alleged in the Indictment

       In his fifth and sixth issues, appellant complains that the jury charge authorized

conviction for conduct that was not alleged in the indictment. In particular, appellant contends

the charge authorized conviction for continuous sexual abuse of a young child based on touching

S.T.’s breast (issue five) and anal penetration (issue six). We are not persuaded by this argument.

        In the abstract portion of the charge, the jury was instructed that “acts of sexual abuse”

means “intentionally or knowingly committing Indecency with Child and/or Aggravated Sexual

Assault of a Child.” Sexual contact was defined as “any touching of the anus, breast, or any part

of the genitals, including touching through the clothing, of another person with intent to arouse

of gratify the sexual desire of any person.” The charge also explained that aggravated sexual

assault against a child occurs when a person:

               Intentionally or knowingly causes the sexual organ of a child to contact or
               penetrate the mouth, anus, or sexual organ of another person, including the
               actor, or causes the contact or penetration of the anus or female sexual
               organ of a child by any means, or causes the contact or penetration of the
                                                –11–
                      mouth of the child by the sexual organ of another person, including the
                      actor, and at the time of the offense the child is younger than 14 years of
                      age.

           The application paragraph, however, tracked the indictment.1 Specifically, the jury was

instructed:

                      Now, bearing in mind the foregoing instructions, if you find and believe
                      from the evidence, beyond a reasonable doubt, that the defendant . . . on or
                      about the 1st day of July, A.D. 2009, in the County of Dallas and State of
                      Texas, did then and there, intentionally or knowingly, during a period that
                      was 30 or more days in duration, when the defendant was 17 years of age
                      or older, commit two or more acts of sexual abuse against [S.T.], a child
                      younger than 14 years of age, hereinafter called complainant, namely by
                      the contact between defendant’s hand and complainant’s genitals with the
                      intent to arouse or gratify the sexual desire of defendant, or by contact
                      between the hand of the complainant and the genitals of the defendant
                      with the intent to arouse or gratify the sexual desire of defendant, or by the
                      penetration of the complainant’s female sexual organ by the defendant’s
                      finger, or by the penetration of the complainant’s female sexual organ by
                      the defendant’s sexual organ, or by the contact between the mouth of the
                      defendant and the female sexual organ of the complainant, or by the
                      contact or penetration of the mouth of the complainant by the sexual organ
                      of the defendant, or by the penetration of the female sexual organ by an
                      object, to wit: a sex toy, then you will find the defendant guilty of the
                      offense of Aggravated Sexual Assault, as charged in the indictment.

           The application paragraph is the “heart and soul” of the jury charge. See Vasquez v. State,

389 S.W.3d 361, 367 (Tex. Crim. App. 2012). As the court of criminal appeals has observed,

“[i]t is the application paragraph of the charge, not the abstract portion, that authorizes a

conviction.” Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012). As the court has

recently explained, this means that “the application paragraph is what, as a practical manner,

authorizes the jury to convict but is not necessarily determinative of what legally authorizes a

conviction. The application paragraph is what explains to the jury, in concrete terms, how to

apply the law to the facts of the case.” Yzaguirre v. State, 394 S.W.3d 526, 530 (Tex. Crim. App.

2013).

   1
       With the exception of the typographical error discussed in connection with appellant’s third issue.



                                                                     –12–
       In the instant case, although the abstract portion of the charge included the full statutory

definitions of “sexual contact” and “aggravated sexual assault of a child,” the application

paragraph properly directed the jury only to the acts of sexual abuse authorized by the

indictment, and did not authorize conviction for touching S.T.’s breast or anal penetration.

Therefore, even if the instructions were erroneous, we cannot conclude appellant suffered

egregious harm. See Patrick v. State, 906 S.W.2d 481, 493 (Tex. Crim. App. 1995) (holding no

harm where application paragraph points jury to appropriate portions of the definitions).

Appellant’s fifth and sixth issues are overruled.

   3. Failure to Give Instruction

       In his second issue, appellant argues the trial court erred in failing to instruct the jury that

any sexual abuse after S.T.’s fourteenth birthday was irrelevant. Specifically, appellant

complains that the charge failed to specify that the evidence concerning the activity at the hotel

after S.T.’s fourteenth birthday could not support a conviction. Appellant also claims the charge

instructed the jury that S.T. only had to be younger than seventeen at the time of the alleged

predicate offense. The State responds that appellant not only failed to object, but expressly

contributed to the crafting of the issue about which he now complains. According to the State,

appellant should be estopped from complaining about the issue on appeal. In the alternative, the

State argues the charge was not erroneous. We decline the State’s invitation to apply estoppel,

but agree the charge was not erroneous.

       Appellant’s argument is premised in part on the inclusion of the statutory definition of a

“child” in the abstract portion of the charge. In particular, the court instructed the jury that a

“child” is a person younger than seventeen years of age. See TEX. PENAL CODE ANN. §§ 21.02(a);

22.011(c)(1) (West 2011). The abstract portion of the charge also provided the statutory

language for the offenses of indecency with a child and aggravated sexual assault, and explained

                                                –13–
that an indecency offense applies to children younger than seventeen, and aggravated sexual

assault of a child applies to children younger than fourteen. See TEX. PENAL CODE ANN. §§

22.11(a); 22.021(2)(B) (West 2011).

       Significantly, however, the charge also instructed that appellant was charged with

continuous sexual abuse of a child, an offense which occurs “if at the time of the commission of

each of the acts of sexual abuse . . . the victim is a child younger than 14 years of age.”

Moreover, the application paragraph instructed the jury that they were required to find beyond a

reasonable doubt that S.T. was “a child younger than 14 years of age.” Therefore, read as a

whole, the charge properly restricted the sexual abuse to that which occurred before S.T.’s

fourteenth birthday.

       Appellant admits the State is not required to prove that 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). Yet appellant insists that even if the charge

correctly stated the law, “it still should have expressly instructed that [a]ppellant’s alleged

conduct at the motel would not support a conviction since [S.T.] was already 14.” Relying on

Martin v. State, 335 S.W.3d 867, 875 (Tex. App.—Austin 2011, pet ref’d), and Taylor v. State,

332 S.W.3d 483, 489 (Tex. Crim. App. 2011), appellant contends the charge is fundamentally

defective because it is inaccurate and omits an important portion of the law applicable to the

case. Appellant’s reliance is misplaced.

       The problem in both Martin and Taylor was that nothing in the charge limited the

chronological perimeter of what the jury could consider. The charge in this case includes such

limitations.




                                              –14–
          We have already observed that the application paragraph properly limited the jury’s

consideration to acts of sexual abuse that occurred before S.T. was fourteen. Appellant, however,

seems to focus on the court’s instruction as to the nonbinding nature of the dates of the offense.

Specifically, the instruction reads:

                     You are instructed that the State is not required to prove the exact date
                     alleged in the indictment, but may prove the offense, if any, to have been
                     committed at any time after September 1, 2007 and prior to the return date
                     of the indictment and that “on or about the 1st day of July 2009” as used
                     herein means any date after September 1, 2007 and before April 23, 2010.2

          As set forth previously, it is not error to instruct the jury as to the nonbinding nature of

the date of an offense. See Martin, 335 S.W.3d at 873. This is particularly true since the

instruction was qualified by the court’s further instruction requiring the jury to find that the

sexual abuse occurred when S.T. was under fourteen years of age. See id. at 874. As the Martin

court observed, “no error is presented if the trial court’s charge qualified the instruction

regarding the nonbinding nature of the alleged dates by otherwise informing or requiring the jury

to find that the offense was committed after . . . the effective date of the statute and before

complainant’s fourteenth birthday.” Id.

          In addition, although the jury could not properly consider the conduct that occurred at the

hotel after S.T.’s fourteenth birthday as a predicate act of sexual abuse, the conduct was

admissible as to S.T.’s and appellant’s state of mind and the relationship between the two. See id.

at 876. In this regard, the jury was instructed:

                     You are further instructed that if there is any testimony before you in this
                     case regarding other crimes, wrongs, or acts committed by [appellant]
                     against [S.T.], you cannot consider said testimony for any purpose unless
                     you find and believe beyond a reasonable doubt that [appellant] committed
                     such crimes, wrongs, or other acts against [S.T.] and then you may only
                     consider said testimony for the purpose of its bearing, if any, on the state

     2
       During the charge conference, appellant specifically requested the inclusion of these “book-end dates between 2007 and the date of the
indictment.”



                                                                  –15–
                       of mind of [appellant] and [S.T.] and the previous and subsequent
                       relationship of [appellant] and [S.T.].

           In the absence of evidence to the contrary, we presume the jury followed the court’s

charge. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). Because the charge

restricted the jury’s consideration of predicate acts to those that occurred before S.T. was

fourteen, we conclude the charge did not erroneously authorize the jury to ignore the age element

of the offense or rely on acts of sexual abuse that occurred after S.T. was fourteen years of age.

Appellant’s second issue is overruled.

   4. Aggravated Sexual Assault

           In his third issue, appellant maintains the trial court erred in submitting aggravated sexual

assault as the “proposed offense of conviction.” The State responds that this typographical error

did not cause appellant egregious harm. We agree with the State.

           Appellant was charged with continuous sexual abuse of a young child. But the final

sentence of the application paragraph reads “then you will find the defendant guilty of the

offense of aggravated sexual assault as charged in the indictment.” (Emphasis added).3 Thus,

there is no question the charge was erroneous. Having so concluded, we next consider whether

appellant suffered egregious harm.

           Charge error is egregiously harmful if it affects the very basis of the case, deprives the

defendant of a valuable right, or vitally affects a defensive theory. Warner v. State, 245 S.W.3d

458, 461 (Tex. Crim. App. 2008). To determine whether jury-charge error is egregious, we

consider the entirety of the jury charge itself, the evidence, including the contested issues and

weight of the probative evidence, the arguments of counsel, and any other relevant information




   3
       The application paragraph is set forth in its entirety in an earlier section of this opinion.



                                                                         –16–
revealed by the record of the trial as a whole. Olivas v. State, 202 S.W.3d 137, 146 (Tex. Crim.

App. 2006).

       Here, the jury charge read as a whole clearly informed the jury that appellant was charged

with continuous sexual abuse of a child. In addition to the definition of the offense in the abstract

section of the charge, other instructions referenced the offense with which appellant was

charged. For example, one instruction specified that “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.” The application paragraph

correctly recited the statutory elements of continuous sexual abuse of a young child. And the

verdict form provided a space to find appellant guilty of “continuous sexual abuse of a child.”

       At trial, the State presented evidence of numerous acts of sexual abuse, which included

both indecency with a child and aggravated sexual assault of a child. There is no indication that

the jury was confused by the evidence or the court’s instructions. Indeed, when the jury returned

the verdict they reported that they found appellant guilty of continuous sexual abuse of a young

child. And there is nothing else in the record—argument of counsel, contested issues, or other

relevant information—to suggest that this typographical error caused any harm at all. Therefore,

considering the entire record, we conclude the charge error did not affect the very basis of the

case, deprive defendant of a valuable right, or vitally affect a defensive theory. Appellant’s third

issue is overruled.

   5. Cumulative Error

       In his seventh issue, appellant contends that the alleged charge errors constitute

cumulative error and he is entitled to a new trial. As the court of criminal appeals has observed,

however, “[w]e are aware of no authority holding that non-errors may in their cumulative effect

cause error.” Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). This

                                               –17–
observation is particularly poignant here. We have concluded that there was no error as to four of

the five complained-of charge errors, and as to the remaining error, there was no egregious harm.

Thus, there is no cumulative error. Appellant’s seventh issue is overruled.

C. The Verdict

       In his eighth issue, appellant argues the verdict was ambiguous as to the offense for

which appellant was convicted. To preserve an alleged error for appeal, a timely and specific

objection must be made. See TEX. R. APP. P. 33.1(a). When the trial court read the verdict

convicting appellant of continuous sexual abuse of a young child, appellant did not object.

Therefore, this issue has not been preserved for our review. See Shelton v. State, 441 S.W.2d

536, 538 (Tex. Crim. App. 1969). Appellant’s eighth issue is overruled.

D. Denial of the Motion for Mistrial

       In his ninth and tenth issues, appellant complains the trial court erred in refusing to grant

his motion for a mistrial. Specifically, appellant complains the trial court erred in refusing a

mistrial when the State discussed anal penetration during opening statement without notice to

appellant (issue nine), and erred in denying a mistrial when the State introduced evidence of anal

penetration without notice (issue ten). The State responds that appellant failed to preserve these

complaints for our review. We agree with the State.

       During opening statement, the State told the jury, “He taught her what anal sex was by

putting his penis inside of her anus. He taught her oral sex, he taught her sex toys, how to use

them, what is what, what does what.” Appellant’s counsel objected, “There’s nothing in the

indictment that was just read concerning anal sex.” The trial court overruled the objection and

denied the request for a mistrial. Appellant’s counsel then stated, “I submit that its improper

argument, opening argument, Your Honor. I respectfully take exception to her opening

argument.”

                                               –18–
       On appeal, appellant asserts the trial court erred in denying the motion for mistrial

because the State failed to give notice of an extraneous offense, and a curative instruction would

not have been adequate to mitigate the harm.

       To preserve a complaint for review on appeal, a party must make a timely, specific

request, objection, or motion to the trial court that states the grounds for the ruling sought, and

the trial court must rule on the request, objection, or motion. TEX. R. APP. P. 33.1(a); Gutierrez v.

State, 36 S.W.3d 509, 510 (Tex. Crim. App. 2001). Furthermore, the complaint on appeal must

comport with the trial objection. See Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App.

2005). Stated otherwise, the complaint must be “essentially the same.” Clarke v. State, 270

S.W.3d 573, 580–83 (Tex. Crim. App. 2008).

       Appellant’s trial objection was that the reference to anal penetration was improper

argument and was not included in the indictment. He now argues he was not provided with

notice of an extraneous offense. Because appellant’s trial objection does not comport with his

argument on appeal, the alleged error has not been preserved for our review. See TEX. R. APP. P.

33.1. Appellant’s ninth issue is overruled.

       Appellant also contends the trial court erred in failing to grant a mistrial when S.T.

testified about anal sex. During trial, S.T. testified that appellant took her to a hotel to have sex.

During the testimony, the following exchange occurred:

               Prosecutor: Did anything different happen in that hotel that had happened
               before, from what had happened before?

               S.T.: Yes, ma’am.

               Prosecutor: What happened?

               S.T.: He put his-

               Defense Counsel: Objection, leading, you honor.

               Judge: Objection Overruled

                                                –19–
                     S.T.: He put his penis in my anus.

Appellant did not object until much later in the testimony, after the parties had returned from

lunch. At that time, appellant’s counsel moved for a mistrial, arguing that the testimony about the

anal sex violated the court’s order in limine concerning extraneous offenses. The motion was

denied.

          Because the record reflects that appellant did not timely object to the testimony about

which he now complains, the issue has not been preserved for our review. See TEX. R. APP. P.

33.1. Appellant’s tenth issue is overruled.

E. Denial of the Motion to Quash the Indictment

          In issues eleven, twelve, thirteen, and fourteen, appellant argues the trial court erred in

denying his motion to quash the indictment because article 21.02 violates the unanimity

requirement of the United States and Texas Constitutions and deprives him of due process and

due course of law.4 We have previously rejected these arguments in connection with the jury

charge, and for the same reasons, reject them now. See Render, 316 S.W.3d at 858; see also State

v. Espinoza, No. 05-09-01260-CR, 2101 WL 2598982, at *5 (Tex. App.—Dallas June 30, 2010,

pet. ref’d) (not designated for publication) (rejecting argument under U.S. and Texas

Constitutions). Issues eleven, twelve, thirteen, and fourteen are overruled.

F. Modification of the Judgment

           The judgment recites that the jury assessed punishment. In a cross-point, the State

requests that we modify the judgment to reflect that the trial court assessed punishment. An

appellate court has the power to modify incorrect judgments when the necessary data and

information is available to do so. See TEX. R. APP. P. 43.2(b); Abron v. State, 997 S.W.2d 281,


     4
        Appellant moved to quash the indictment because the jurors would not be required to agree unanimously on the specific acts of sexual
abuse or the specific times these acts occurred.



                                                                  –20–
282 (Tex. App.—Dallas 1998, pet. ref’d); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim.

App. 1993).

       Here, the record reflects that appellant elected to have the court assess punishment and

the jury was discharged following the return of their verdict. The record further reflects that the

trial judge heard punishment evidence and assessed punishment. Therefore, we modify the

judgment to reflect that the court assessed punishment in this case.

                                          III. CONCLUSION

       Appellant’s fourteen issues are overruled. We modify the trial court’s judgment to reflect

that the trial court assessed punishment. As modified, the judgment is affirmed.




                                                    /Kerry P. FitzGerald/
                                                    KERRY P. FITZGERALD
                                                    JUSTICE



Do Not Publish
TEX. R. APP. P. 47
120377F.U05




                                               –21–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

MANUEL LEIS PEREZ                                  On Appeal from the Criminal District Court
                                                   No. 3, Dallas County, Texas
No. 05-12-00377-CR        V.                       Trial Court Cause No. F10-31001-J.
                                                   Opinion delivered by Justice FitzGerald.
THE STATE OF TEXAS, Appellee                       Justices Bridges and Myers participating.

     Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
     to reflect that the trial court assessed punishment.
As REFORMED, the judgment is AFFIRMED.


Judgment entered this 26th day of August, 2013.




                                                  /Kerry P. FitzGerald/
                                                  KERRY P. FITZGERALD
                                                  JUSTICE




                                            –22–
