                                                                         PD-0409-15
                      PD-0409-15                        COURT OF CRIMINAL APPEALS
                                                                         AUSTIN, TEXAS
                                                      Transmitted 4/13/2015 8:20:46 AM
                                                        Accepted 4/15/2015 4:28:42 PM
                                                                          ABEL ACOSTA
                      NO. ____________________                                    CLERK

    IN THE COURT OF CRIMINAL APPEALS OF TEXAS




                  ALCENIOS MARTINEZ
                 a/k/a AUCENSIO LOPEZ,

                                v.

                  THE STATE OF TEXAS


                From the Eastland Court of Appeals
                    Cause No. 11-13-00080-CR


APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

                                     E. Alan Bennett
                                     State Bar #02140700
                                     Counsel for Appellant

                                     Sheehy, Lovelace & Mayfield, P.C.
     April 15, 2015
                                     510 N. Valley Mills Dr., Ste. 500
                                     Waco, Texas 76710
                                     Telephone: (254) 772-8022
                                     Telecopier: (254) 772-9297
                                     Email: abennett@slmpc.com


             ORAL ARGUMENT REQUESTED
                  Identity of Judge, Parties and Counsel

     Appellant, pursuant to Rule of Appellate Procedure 68.4(a), provides

the following list of the trial court judge, all parties to the trial court’s

judgment, and the names and addresses of all trial and appellate counsel.


THE TRIAL COURT:

Hon. Phil Robertson                                        Trial Court Judge
220th District Court, Comanche County
101 West Central
Comanche, Texas 76442

THE DEFENSE:

Alcenios Martinez                                                 Appellant
aka Aucensio Lopez

Rickey L. Bryan                                                Trial Counsel
P.O. Box 587
Hamilton, Texas 76531

E. Alan Bennett                                           Appellate Counsel
510 North Valley Mills Drive, Suite 500
Waco, Texas 76710




Appellant’s PDR                                                        Page 2
THE STATE:

Adam Sibley                   Trial & Appellate Counsel
Assistant District Attorney

B.J. Shepherd
District Attorney

220th Judicial District
P.O. Box 368
Meridian, Texas 76665




Appellant’s PDR                                  Page 3
                                               Table of Contents

Identity of Judge, Parties and Counsel..................................................................... 2

Table of Contents ......................................................................................................... 4

Index of Authorities .................................................................................................... 5

Statement Regarding Oral Argument ...................................................................... 7

Statement of the Case .................................................................................................. 7

Statement of Procedural History............................................................................... 8

Grounds for Review .................................................................................................... 8

Reasons for Granting Review .................................................................................... 9

Argument.................................................................................................................... 10

      1.   Whether the trial court in a continuous sexual abuse case must
      instruct the jury that jurors must be unanimous as to which acts of sexual
      abuse were committed when the evidence shows only two but the State
      offers evidence of an extraneous sex offense that does not fit within the
      allegations of the indictment. ........................................................................... 10

      2.   Whether aggravated sexual assault is both a conduct-oriented and a
      result-oriented offense. ...................................................................................... 16

Prayer .......................................................................................................................... 22

Certificate of Compliance ......................................................................................... 23

Certificate of Service ................................................................................................. 23

Appendix .................................................................................................................... 24


Appellant’s PDR                                                                                                           Page 4
                                            Index of Authorities

                                                     Texas Cases

Baker v. State, 94 S.W.3d 684 (Tex. App.—Eastland 2002, no pet.) .......... 17, 19

Chanthakoummane v. State, No. AP-75794, 2010 WL 1696789 (Tex. Crim.
App. Apr. 28, 2010) ...............................................................................................18

Cook v. State, 884 S.W.2d 485 (Tex. Crim. App. 1994) ............................... 18, 20

Ex parte Morales, 416 S.W.3d 546 (Tex. App.—Houston [14th Dist.] 2013, pet.
ref’d) ................................................................................................................. 13, 14

Fulmer v. State, 401 S.W.3d 305 (Tex. App.—San Antonio 2013, pet. ref’d) .11

Gonzales v. State, 304 S.W.3d 838 (Tex. Crim. App. 2010) ................................20

Huffman v. State, 267 S.W.3d 902 (Tex. Crim. App. 2008) ................................18

Kennedy v. State, 385 S.W.3d 729 (Tex. App.—Amarillo 2012, pet. ref’d), cert.
denied, 134 S.Ct. 681 (2013) ...................................................................... 11, 12, 14

Kreitel v. State, No. 06-01-00200-CR, 2003 WL 193493 (Tex. App.—
Texarkana Jan. 30, 2003, no pet.) .........................................................................19

Lane v. State, 357 S.W.3d 770 (Tex. App.—Houston [14th Dist.] 2011, pet.
ref’d) ........................................................................................................................16

McMillian v. State, 388 S.W.3d 866 (Tex. App.—Houston [14th Dist.] 2012,
no pet.) ............................................................................................................. 11, 12

McQueen v. State, 781 S.W.2d 600 (Tex. Crim. App. 1989) ..............................18

Myers v. State, No. 05-95-00842-CR, 1997 WL 36947 (Tex. App.—Dallas Jan.
31, 1997, no pet.) ....................................................................................................20

Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005)........................................11

Pitre v. State, 44 S.W.3d 616 (Tex. App.—Eastland 2002, pet. ref’d) ..............19

Pizzo v. State, 235 S.W.3d 711 (Tex. Crim. App. 2007)............................... 11, 14

Appellant’s PDR                                                                                                        Page 5
Pleasant v. State, No. 01-90-00878-CR, 1992 WL 79686 (Tex. App.—Houston
[1st Dist.] Apr. 23, 1992, pet. ref’d) .............................................................. 17, 19

Saldivar v. State, 783 S.W.2d 265 (Tex. App.—Corpus Christi 1989, no pet.) ...
..................................................................................................................................19

Vick v. State, 991 S.W.2d 830 (Tex. Crim. App. 1999) .......................................20



                                                     Texas Statutes

TEX. PEN. CODE § 21.02(d) .....................................................................................11

TEX. PEN. CODE § 22.021(a)(1)(B)(i) ......................................................................17

TEX. PEN. CODE § 25.11(a) .....................................................................................12



                                                            Rules

TEX. R. APP. P. 66.3 ........................................................................................ passim




Appellant’s PDR                                                                                                           Page 6
                  Statement Regarding Oral Argument
      Oral argument will aid the decisional process. This petition presents

two issues that this Court has not addressed. Oral argument will give

counsel the opportunity to present additional argument and the judges to

ask additional questions regarding appropriate jury instructions for

continuous sexual abuse cases and the applicable conduct elements for the

offense of aggravated sexual assault. For these reasons and to address any

other issues, Appellant respectfully requests the opportunity to appear and

present oral argument.




                          Statement of the Case

      A jury convicted Appellant of continuous sexual abuse of a young

child. The trial court, the Honorable Phil Robertson, presiding judge of the

220th District Court of Comanche County, sentenced Appellant to fifty

years’ imprisonment.




Appellant’s PDR                                                       Page 7
                    Statement of Procedural History

      The Eastland Court of Appeals affirmed Appellant’s conviction in a

unanimous opinion authored by Justice Willson that was handed down

March 20, 2015. No motion for rehearing was filed.




                           Grounds for Review


      1.    Whether the trial court in a continuous sexual abuse case must
            instruct the jury that jurors must be unanimous as to which acts
            of sexual abuse were committed when the evidence shows only
            two but the State offers evidence of an extraneous sex offense
            that does not fit within the allegations of the indictment.

      2.    Whether aggravated sexual assault is both a conduct-oriented
            and a result-oriented offense.




Appellant’s PDR                                                       Page 8
                      Reasons for Granting Review

   The Court should grant discretionary review in this appeal because the

Eastland Court of Appeals: (1) has issued a decision that conflicts with the

decisions of other courts of appeals; (2) has decided important questions of

state law that have not been, but should be, settled by this Court; (3) has

decided an important question of state law in a way that conflicts with the

applicable decisions of this Court; and (4) has misconstrued sections

21.02(d) and 22.021 of the Penal Code. TEX. R. APP. P. 66.3.




Appellant’s PDR                                                       Page 9
                                  Argument


1.    Whether the trial court in a continuous sexual abuse case must
      instruct the jury that jurors must be unanimous as to which acts of
      sexual abuse were committed when the evidence shows only two
      but the State offers evidence of an extraneous sex offense that does
      not fit within the allegations of the indictment.


      The jury heard evidence of at least three instances when Appellant

allegedly engaged in sexual misconduct with the complainant. However,

only two of those instances fit within the allegations of the indictment. The

jury charge instructed the jury that it could convict if the jurors found that

he committed two or more acts of sexual abuse and that the jurors need not

unanimously agree as to which specific acts of sexual abuse were

committed. Appellant argued before the Eastland Court of Appeals that

this was error and that the trial court should have instructed the jurors that

they must unanimously agree that he committed the only two acts of

sexual abuse alleged in the indictment. The trial court’s failure to so

instruct resulted in the possibility of a non-unanimous verdict. The

Eastland Court erred by failing to require the requested unanimity

instruction.



Appellant’s PDR                                                        Page 10
Jury Unanimity is Required by Constitution and Statute

      “Under our state constitution, jury unanimity is required in felony

cases, and, under our state statutes, unanimity is required in all criminal

cases.” Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007) (quoting

Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005)).

Section 21.02(d) Provides an Exception to the Unanimity Requirement

      Section 21.02(d) of the Penal Code states in relevant 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.” TEX. PEN. CODE § 21.02(d).

      This provision has withstood numerous challenges premised on the

assertion that it violates the constitutional requirement of juror unanimity.

See, e.g., Fulmer v. State, 401 S.W.3d 305, 313 (Tex. App.—San Antonio 2013,

pet. ref’d); McMillian v. State, 388 S.W.3d 866, 873 (Tex. App.—Houston

[14th Dist.] 2012, no pet.); Kennedy v. State, 385 S.W.3d 729, 732 (Tex. App.—

Amarillo 2012, pet. ref’d), cert. denied, 134 S.Ct. 681 (2013).

Section 21.02(d) Should Not Apply When Only Two Acts Are Alleged

      Each of the cases cited above involved evidence of more than two acts

of sexual abuse that fit within the allegations of the indictment. See Fulmer,


Appellant’s PDR                                                         Page 11
401 S.W.3d at 317 (6 incidents); McMillian, 388 S.W.3d at 869-70 (at least 3

incidents); Kennedy, 385 S.W.3d at 732 (“more than two”).

       Appellant’s case is different than these because: (1) his indictment

alleged only two acts of sexual abuse; (2) the State offered evidence of only

two alleged incidents that fit within the allegations of the indictment; and

(3) the trial court referred to only those two alleged incidents in the

application section of the charge. See Kennedy, 385 S.W.3d at 732 (“Where

the evidence supports more than two acts of sexual abuse over the specified

time, jurors need not agree as to which individual acts were committed so

long as they agree the defendant committed at least two.”) (emphasis

added).

       The Fourteenth Court of Appeals discussed a similar scenario in a

case involving section 25.11 of the Penal Code.1




1
       Section 25.11 defines the offense of continuous violence against the family. The statute
provides in relevant part:

       A person commits an offense if, during a period that is 12 months or less in
       duration, the person two or more times engages in conduct that constitutes an
       offense under Section 22.01(a)(1) against another person or persons whose
       relationship to or association with the defendant is described by Section 71.
       0021(b), 71.003, or 71.005, Family Code.

TEX. PEN. CODE § 25.11(a).

Appellant’s PDR                                                                        Page 12
      The indictment alleges that appellant committed an offense
      under Section 25.11 by committing two acts of violence—one in
      November 2011 and the other in January 2012—both of which
      caused bodily injury to the same member of appellant’s family.
      If the evidence supported this most basic of allegations, a
      conviction could be had only if the jurors unanimously agreed that
      the defendant committed both component assaults against the same
      individual complainant.

Ex parte Morales, 416 S.W.3d 546, 549-50 (Tex. App.—Houston [14th Dist.]

2013, pet. ref’d) (emphasis added).

The Jury Had to Be Unanimous as to the Only Two Offenses Alleged and
Proved But the Trial Court Instructed Them Otherwise

      Under the indictment, the evidence, and the jury charge, the jury

heard evidence of only two alleged instances of sexual abuse that could

form the basis for Appellant’s prosecution and sustain a verdict of guilt.

However, the trial court instructed the jury as follows regarding

unanimity:

      With regard to element 1, you need not all agree on which
      specific acts of sexual abuse were committed by the defendant
      or the exact date when those acts were committed. You must,
      however, all agree that the defendant committed two or more
      acts of sexual abuse.

(CR at 46).




Appellant’s PDR                                                        Page 13
      The State introduced evidence of an extraneous instance of sexual

misconduct not included within the indictment, but the trial court failed to

include any kind of limiting instruction in the charge.

      This case is controlled by the analysis set forth in Morales. Because

the indictment alleged only two incidents of sexual abuse, “a conviction

could be had only if the jurors unanimously agreed that the defendant

committed both component [incidents of sexual abuse].” See Morales, 416

S.W.3d at 550; see also Kennedy, 385 S.W.3d at 732.

      The trial court effectively instructed the jurors that they could convict

on the basis of any two of the three alleged instances of sexual misconduct

without unanimously agreeing on the only two acts that could serve as the

basis for a guilty verdict. This violated Appellant’s right to a unanimous

jury verdict. See Pizzo, 235 S.W.3d at 719.

      The Eastland Court erred by holding otherwise.

The Court Should Grant Review on This Issue

      The Court should grant review of this issue for most of the reasons

listed in Rule 66.3. See TEX. R. APP. P. 66.3.




Appellant’s PDR                                                         Page 14
      The Eastland Court’s decision appears to conflict with the decision of

the Fourteenth Court in Morales; Id. 66.3(a).

      The issue of whether section 21.02(d) applies when the evidence

shows only two acts constitutes an important question of state law that has

not been, but should be, settled by this Court. Id. 66.3(b).

      The Eastland Court’s decision appears to conflict with the applicable

decisions of this Court, namely, Pizzo. Id. 66.3(c).

      The Eastland Court’s decision appears to be based on that court’s

improper construction of section 21.02(d). Id. 66.3(d).

      For these reasons, the Court should grant this ground for

discretionary review.




Appellant’s PDR                                                      Page 15
2.    Whether aggravated sexual assault is both a conduct-oriented and a
      result-oriented offense.


      The Eastland Court and the Houston [First] Court have held that

aggravated sexual assault2 is both a conduct-oriented and a result-oriented

offense. Other courts have concluded that the offense is only result-

oriented. This Court has not addressed that question in the context of

culpable mental states. In Appellant’s case, the Eastland Court reversed

itself and concluded that this offense is only conduct-oriented. The

statutory language supports the Eastland Court’s prior determination

under Baker that the statute involves both the nature of the actor’s conduct

and the result of his conduct. The Eastland Court erred by concluding

otherwise. This Court should grant review at minimum to resolve the

conflict among Texas appellate courts and ensure that trial courts are

properly instructing juries regarding the applicable culpable mental states

for this offense.




2
      Although the charged offense is continuous sexual abuse, the relevant culpable
mental states are those applicable to the underlying offenses. See Lane v. State, 357
S.W.3d 770, 776 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).


Appellant’s PDR                                                              Page 16
The Allegations Include Both Conduct- and Result-Oriented Elements

      Section 22.021(a)(1)(B)(i) provides that a person commits aggravated

sexual assault of a child if he “intentionally or knowingly . . . causes the

penetration of the anus or sexual organ of a child by any means.” TEX. PEN.

CODE § 22.021(a)(1)(B)(i).

      The indictment alleges that Appellant twice sexually assaulted the

complainant “by intentionally or knowingly causing the penetration of the

sexual organ of E.M. . . . by defendant’s sexual organ.” (CR 6)

      Therefore, Appellant contends that the State must prove, the trial

court must instruct, and the jury must find that he acted intentionally or

knowingly both with respect to the result (“causing the penetration”) and

the conduct (“by defendant’s sexual organ”). Baker v. State, 94 S.W.3d 684,

690 (Tex. App.—Eastland 2002, no pet.); Pleasant v. State, No. 01-90-00878-

CR, 1992 WL 79686, at *3 (Tex. App.—Houston [1st Dist.] Apr. 23, 1992, pet.

ref’d).

The Conduct Elements

      Texas courts have recognized three “conduct elements” that apply to

different offenses. Those elements are: (1) the nature of the conduct; (2) the

result of the conduct; and (3) the circumstances surrounding the conduct.


Appellant’s PDR                                                        Page 17
Huffman v. State, 267 S.W.3d 902, 907 (Tex. Crim. App. 2008); McQueen v.

State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). An offense may involve

more than one of these elements. Huffman, 267 S.W.3d at 907; McQueen, 781

S.W.2d at 603.

      Determining the requisite conduct elements that apply to a particular

offense is important because “[i]t is error for a trial judge to not limit the

definitions of the culpable mental states as they relate to the conduct

elements involved in the particular offense.” Cook v. State, 884 S.W.2d 485,

491 (Tex. Crim. App. 1994); see Chanthakoummane v. State, No. AP-75794,

2010 WL 1696789, at *26 (Tex. Crim. App. Apr. 28, 2010). Here, Appellant’s

complaint before the Eastland Court was that the trial court had failed to

properly tailor the applicable definitions and instructions regarding the

culpable mental states.

Appellate Courts are Divided on How to Classify This Offense

      The Eastland Court previously determined that aggravated sexual

assault involves two conduct elements.

      We find that aggravated sexual assault of a child involves both
      result of conduct and nature of conduct elements. A person
      commits the offense of aggravated sexual assault of a child if he
      “causes the penetration of the anus or female sexual organ of a
      child by any means” or if he “causes the penetration of the


Appellant’s PDR                                                        Page 18
         mouth of a child by the sexual organ of the actor.” To cause
         “the penetration of the anus or female sexual organ” involves a
         result of conduct. “By any means” or “by the sexual organ of
         the actor” involves a type or nature of conduct.

Baker, 94 S.W.3d at 690 (Tex. App.—Eastland 2002, no pet.) (citing Pitre v.

State, 44 S.W.3d 616, 620 (Tex. App.—Eastland 2002, pet. ref’d)) (other

citation omitted).

         The Houston [First] Court has reached the same conclusion. See

Pleasant, 1992 WL 79686, at *3.

         Conversely, the Texarkana Court has treated aggravated sexual

assault as only a result-oriented offense. See Kreitel v. State, No. 06-01-

00200-CR, 2003 WL 193493, at *3 (Tex. App.—Texarkana Jan. 30, 2003, no

pet.).

         The Corpus Christi Court, while ultimately classifying the offense as

result-oriented, addressed the issue in an ambiguous fashion.3 See Saldivar

v. State, 783 S.W.2d 265, 267-68 (Tex. App.—Corpus Christi 1989, no pet.)

(“aggravated sexual assault would appear to be only a ‘result’ type offense,


3
       Courts on both sides of the issue have looked to Saldivar to support their
conclusions. See Kreitel v. State, No. 06-01-00200-CR, 2003 WL 193493, at *3 (Tex. App.—
Texarkana Jan. 30, 2003, no pet.); Baker v. State, 94 S.W.3d 684, 690 (Tex. App.—Eastland
2002, no pet.); Myers v. State, No. 05-95-00842-CR, 1997 WL 36947, at *4 (Tex. App.—
Dallas Jan. 31, 1997, no pet.); Pleasant v. State, No. 01-90-00878-CR, 1992 WL 79686, at *3
(Tex. App.—Houston [1st Dist.] Apr. 23, 1992, pet. ref’d).


Appellant’s PDR                                                                    Page 19
or a mixture of ‘result’ and ‘nature of the conduct’ type offense”). The

Dallas Court likewise addressed the issue in an ambiguous manner. See

Myers v. State, No. 05-95-00842-CR, 1997 WL 36947, at *4-5 (Tex. App.—

Dallas Jan. 31, 1997, no pet.).

      In the context of double jeopardy, this Court has held that aggravated

sexual assault is conduct-oriented. Gonzales v. State, 304 S.W.3d 838, 847-49

(Tex. Crim. App. 2010); Vick v. State, 991 S.W.2d 830, 832 (Tex. Crim. App.

1999). Appellant suggests that the considerations and relevant analysis for

determining whether an offense is conduct-oriented for purposes of double

jeopardy are different than those employed when determining how the

relevant culpable mental states apply to an offense.

      When this Court considered a similar issue in a manslaughter case,

Judge Maloney suggested in a concurring opinion that aggravated sexual

assault may involve more than one conduct element. Cook, 884 S.W.2d at

493 n.5 (Maloney, J., concurring).

This Court Should Grant Review

      The Court should grant review of this issue for several of the reasons

listed in Rule 66.3. See TEX. R. APP. P. 66.3.




Appellant’s PDR                                                       Page 20
      The Eastland Court’s decision appears to conflict with the decisions

of the Houston [First] Court in Pleasant, the Texarkana Court in Kreitel, and

the Dallas Court in Myers; Id. 66.3(a).

      The issue of whether aggravated sexual assault is both conduct-

oriented and result-oriented with regard to the applicable culpable mental

states constitutes an important question of state law that has not been, but

should be, settled by this Court. Id. 66.3(b).

      The Eastland Court’s decision appears to be based on that court’s

improper construction of section 22.021 of the Penal Code. Id. 66.3(d).

      For each of these reasons, this Court should grant this ground for

discretionary review.




Appellant’s PDR                                                       Page 21
                                   Prayer

      WHEREFORE,       PREMISES      CONSIDERED,        Appellant    Alcenios

Martinez a/k/a Aucensio Lopez asks the Court to: (1) grant review on the

issues presented in this petition for discretionary review; and (2) grant such

other and further relief to which he may show himself justly entitled.

                                         Respectfully submitted,



                                           /s/ Alan Bennett
                                         E. Alan Bennett
                                         SBOT #02140700
                                         Counsel for Appellant

                                         Sheehy, Lovelace & Mayfield, P.C.
                                         510 N. Valley Mills Dr., Ste. 500
                                         Waco, Texas 76710
                                         Telephone:        (254) 772-8022
                                         Fax:        (254) 772-9297
                                         Email:      abennett@slmpc.com




Appellant’s PDR                                                          Page 22
                       Certificate of Compliance


      The undersigned hereby certifies, pursuant to Rule of Appellate

Procedure 9.4(i)(3), that this computer-generated document contains 3,371

words.



                                             /s/ Alan Bennett
                                           E. Alan Bennett




                            Certificate of Service

      The undersigned hereby certifies that a true and correct copy of this

brief was served electronically on April 13, 2015 to: (1) counsel for the State,

Adam Sibley at adam_sibley@mac.com; and (2) the State Prosecuting

Attorney Lisa McMinn at lisa.mcminn@SPA.texas.gov.



                                             /s/ Alan Bennett
                                           E. Alan Bennett




Appellant’s PDR                                                          Page 23
                              Appendix



Opinion of Eastland Court of Appeals:

      Martinez v. State, No. 11-13-00080-CR, 2015 WL 1322315 (Tex. App.—
      Eastland Mar. 20, 2015, pet. filed)




Appellant’s PDR                                                  Page 24
Opinion filed March 20, 2015




                                                In The


           Eleventh Court of Appeals
                                            __________

                                      No. 11-13-00080-CR
                                          __________

                            ALCENIOS MARTINEZ
                      (A/K/A AUCENSIO LOPEZ), Appellant
                                                   V.
                          THE STATE OF TEXAS, Appellee


                          On Appeal from the 220th District Court
                                Comanche County, Texas
                             Trial Court Cause No. CR-03529


                           MEMORANDUM OPINION
      The jury found Alcenios Martinez, Appellant, guilty of the offense of
continuous sexual abuse of a young child.1 The trial court assessed punishment at
confinement for fifty years and sentenced Appellant accordingly. Appellant raises
four issues on appeal. We affirm.

      1
          TEX. PENAL CODE ANN. § 21.02 (West Supp. 2014).
                              I. The Charged Offense
      The grand jury returned an indictment against Appellant for the offense of
continuous sexual abuse of a young child. A person commits the offense of
continuous sexual abuse of a young child if:
            (1) during a period that is 30 or more days in duration, the
      person commits two or more acts of sexual abuse . . . and

            (2) at the time of the commission of each of the acts of sexual
      abuse, the actor is 17 years of age or older and the victim is a child
      younger than 14 years of age.

TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2014). “Sexual abuse” includes
aggravated sexual assault. Id. § 21.02(c)(4). A person commits the offense of
aggravated sexual assault if the person “intentionally or knowingly . . . causes the
penetration of the . . . sexual organ of a child by any means” and if “the victim is
younger than 14 years of age.” Id. § 22.021(a)(1)(B)(i), (a)(2)(B). Continuous
sexual abuse of a young child is a first-degree felony, punishable by imprisonment
for life or for “any term of not more than 99 years or less than 25 years.” Id.
§ 21.02(h).
                               II. Evidence at Trial
      Ken Maltby, a deputy sheriff with the Comanche County Sheriff’s Office,
testified that he received a call from Chief James Elliot of the Ranger Police
Department about an eleven-year-old girl that had been sexually assaulted. Deputy
Maltby identified the victim as E.M.      Deputy Maltby testified that E.M. was
interviewed at the advocacy center in Eastland, Texas, and that he watched the
interview from a closed circuit television. From the interview, he determined that
E.M. was Appellant’s daughter and that she made allegations of sexual abuse
against Appellant. Deputy Maltby obtained a warrant for Appellant’s arrest and
subsequently arrested Appellant. He set up an appointment for E.M. with the


                                         2
sexual assault nurse examiner (SANE) in Fort Worth at Cook Children’s Medical
Center.
      E.M. identified Appellant as her father. She testified that her parents split up
when she was eight years old and that she lived with her mother. E.M. testified
that, in November 2010 when she was ten years old, she and her brother J.M.
visited Appellant at his house on J.M.’s birthday. She said that she and her brother
had their own bedrooms at Appellant’s house but that, on this occasion,
Appellant’s coworker lived in J.M.’s room, and her room felt cold or hot and had
“a bunch of cockroaches and stuff,” so both J.M. and E.M. slept in Appellant’s
room. E.M. testified that they all slept in Appellant’s bed. She explained that
Appellant slept on one side of the bed, that J.M. was in the middle, and that she
slept on the other side of the bed. She testified she woke up that night when
Appellant switched places with J.M. E.M. testified that Appellant subsequently
pulled down her “sweats” and underwear, climbed on top of her, “put his penis into
[her] vagina,” and “started humping [her].” She testified that neither of them said
anything and that Appellant was “just breathing heavily.”
      E.M. testified she tried to move to make Appellant think she was “starting to
wake up” so he would stop, “but he wouldn’t.” She said he eventually stopped and
pulled her underwear and “sweats” up.         J.M. was asleep the entire time this
happened. E.M. testified that she fell asleep after the incident and that, in the
morning, she found a “white substance” in her underwear that was “a bit wet.”
Neither E.M. nor Appellant talked about what happened. E.M. testified she did not
tell her mother what happened because she was “afraid” her mother would be mad
at her “for not telling her anything.”
      E.M. testified that, several months after this incident, she saw Appellant
again because she wanted him to buy her a phone. She said that, while she was
asleep in Appellant’s pickup, he “reached over and started touching [her] breast.”

                                          3
She moved “to the window side,” but neither she nor Appellant said anything.
Nothing else happened that night when E.M. slept at Appellant’s house.
       Sometime between July and November of 2011, E.M. and J.M. visited
Appellant again.         E.M. testified that, on this occasion, she and J.M. slept in
Appellant’s bed, with J.M. in the middle and E.M. and Appellant on either side.
She testified that Appellant “got out of the bed,” “went around” to where E.M.
slept, “pushed [her] to where [J.M.] was so [J.M.] was now on the outer side,” and
got in bed next to her. J.M. did not wake up when this happened. E.M. testified
that Appellant faced E.M. in the bed, pulled down his pants and shorts and E.M.’s
underwear, and then “stuck his penis into [her] vagina like the - - the outer part.”
E.M. said that she pushed Appellant away and that he immediately stopped.
       E.M. testified that she told one of her friends what had happened and that the
friend told her mother, who called the school principal, John Thompson Jr.
Thompson called E.M. into his office, and E.M. told him and the school counselor,
John Olivo, what Appellant had done. Thompson subsequently called the police,
and Olivo called E.M.’s mother. E.M.’s mother came to the school, and E.M. told
her mother what had happened. E.M. testified, “I was angry at myself for not
telling her.”
       E.M. said she went to Eastland that same day and interviewed with Robin
Seabourn about what had happened. She said that, sometime later, she went to
Fort Worth, told someone else about what had happened, and received a physical
examination. E.M. testified that she told those two people the same thing that she
testified to at trial.
       Thompson, who was the middle school principal of Ranger I.S.D. in
February 2012, testified he had received a phone call from a student’s parent that
E.M. “possibly was sexual[ly] assaulted.” He testified that he met with E.M. in the
coach’s office during E.M.’s P.E. class. At that time, E.M. did not “say either

                                             4
way” what had happened. Thompson testified that, the next day, he received “an
inner-office e-mail” that indicated a student had reported that someone “needed to
probably talk to [E.M.] again.” Thompson called E.M. into Olivo’s office, and
both he and Olivo talked with E.M. E.M. cried and reported that something sexual
had happened with her father. E.M. said that the last time was in October or
November of 2011. Thompson said that they called E.M.’s mother, that she came
to the school, and that E.M. told her mother what had happened. Thompson
testified that E.M. was “an A/B student, never a discipline problem, gets along real
well with all of the kids, very quiet normally, just a great kid” and that he
“wouldn’t expect her in a situation like this to make up a story like that.”
        Olivo, who was the middle school counselor in the Ranger school district in
the spring of 2012, testified that he met with E.M in February 2012. He was
present when E.M. told her mother what happened. He said that E.M. “was a good
student, good grades, real personable, . . . no disciplinary things in the classroom or
anything” and that he “didn’t see any reason not to believe . . . what she was
saying.”
        Robin Seabourn, a forensic interviewer at the children’s advocacy center in
Eastland, testified that she conducted a forensic interview with E.M. in February
2012.      She said that Chief Elliot scheduled the interview and that he and
Deputy Maltby watched the interview live on a video screen in another room.
Seabourn testified that E.M. identified the difference between the truth and a lie
and described in detail what happened to her.          Seabourn testified that E.M.
identified Appellant as the individual who sexually abused her and that her story
“was very consistent.”
        Rebecca Sullivan, a SANE at Cook Children’s Medical Center, testified that
she performed a sexual abuse exam on E.M. in February 2012. She asked E.M.
why she was there that day, and E.M. responded “because my dad abused me. He

                                          5
like touched me down there, my vagina, with his penis.” Sullivan asked E.M. if it
happened once or more than once, and E.M. told her that “it happened more than
once.” She testified that, when she asked E.M. “if any other types of contact
happened,” E.M. said, “[W]hen we were in the car that he touched my front part
with his hands one time . . . when I was eight or nine.” E.M. also told Sullivan that
“there was contact” with her chest on top of her clothes when they were in the car.
Sullivan asked E.M. how old she was when the penile vaginal contact started.
E.M. said she was ten. Sullivan testified that E.M. identified Appellant as her
father. E.M. told her that the contact happened at Appellant’s house. E.M. also
told her that the last time anything had happened was “over the summer, in
September.”    Sullivan testified that, based on what E.M. told her, E.M. had
described “penetration” of her vagina by Appellant’s penis on more than one
occasion.
      Sullivan said that E.M. had no signs of injury or trauma to her genitalia and
that those findings were consistent with E.M.’s medical history. She testified that
it was “actually rare” to have physical findings in a sexual abuse exam and
explained that “most children don’t disclose right away, . . . so when we’re doing
their exam plenty of time has passed so if there ever was an injury it’s had time to
heal.” She stated that it was rare to diagnose sexual abuse from the exam and that
“[t]he most important part is the history, what the child said happened.” Sullivan’s
impressions were that E.M. had been sexually abused and that she had a normal
exam with no anal or genital trauma. She read her notes about E.M.’s demeanor
during the exam. E.M. “was alert and oriented, cooperative” and “answered the
questions readily and with eye contact.”
      J.R., E.M.’s mother, testified that she lived with Appellant for ten years but
that she was never married to him. J.R. met Appellant when she was about
fourteen years old and Appellant was about twenty-seven.             Appellant was

                                           6
“[m]aybe” thirty-nine at the time of trial. J.R. was sixteen or seventeen when she
had E.M., and E.M. was twelve at the time of trial. She testified that E.M. has
never had a boyfriend and has never wanted to have a boyfriend. J.R. said that
E.M. was not mad at Appellant when he did not buy her a new cell phone. The
first time she heard about what Appellant did to E.M. was when she went to the
school and met with E.M., the principal, and the counselor. J.R. testified that E.M.
was intelligent and honest and that she had no problems with E.M. at home.
According to J.R., E.M. is not “the type of girl that would make something like this
up.”
       Andy Hesbrook, a friend of Appellant, testified that he had known Appellant
for about fourteen years, that Appellant was a good father, and that he had heard
nothing negative about Appellant. Maggie Hesbrook, who described Appellant as
her “brother-in-law’s brother,” testified that she had known Appellant for about
twenty years, had never heard anything negative about Appellant, and believed
Appellant to be a good father.
       Eladio “Billy” Martinez, Appellant’s brother, testified that he had heard
nothing negative about Appellant and that Appellant was a good father. He last
saw E.M. at Appellant’s house in September 2011. Esther Martinez, Appellant’s
sister-in-law, testified that she had known Appellant for twenty-three years, that he
was a good father, that she had heard nothing negative about him, and that E.M.
never appeared uncomfortable around Appellant. Glenn Hodges, who had known
Appellant for ten or twelve years, testified that Appellant’s family members were
“real dependable, honest kind of people” and that he had heard nothing negative
about Appellant. James Delaney, who had known Appellant for three or four
years, testified that Appellant was honest and trustworthy. Steve Ruedas, who
described Appellant as his “aunt’s brother,” testified that he thought Appellant was
a good father and that he had never heard anything negative about Appellant.

                                         7
      Appellant, through an interpreter, testified that he slept in the same bed with
E.M. and J.M. but that “each one had their own cover.” They slept in the same bed
because he had only one air conditioner and because his friend stayed and lived in
the other room. Appellant testified that J.M. slept in the middle, that Appellant did
not sleep next to E.M., and that Appellant never changed that arrangement. E.M.
and J.M. visited him on J.M.’s birthday in November 2010, but they stayed at his
brother’s house, each on different sofas. He remembered that E.M. last visited him
in June 2011 “because it was one month before her birthday and she asked for a
cell phone.” In response to his brother’s testimony regarding having seen E.M. at
Appellant’s house in September 2011, Appellant said that his brother “doesn’t pay
attention to the time frames” and that the September visit never occurred.
According to Appellant, E.M. and J.M. never visited his house in November 2011.
      Appellant testified that he thought E.M. did not tell the truth because one
time “[t]hey wanted me to pick them up and I couldn’t because I didn’t have any
money. They only would call me, look for me when they wanted something.” He
explained that E.M.’s testimony—that Appellant touched her breast—could not be
true because the friend that lived with Appellant always went with Appellant when
he went to Ranger to visit his children; the friend sat in the front seat, so E.M.
could not have sat in the front seat. Appellant never spent time alone with his
children because his friend that lived with him would always be with them.
Appellant said that E.M. lied because E.M.’s mother had threatened to send her
back to Appellant. Appellant testified, “I know that I’m innocent. [I] have not
done anything of what I’m accused.”
                                 III. Issues Presented
      Appellant presents four issues on appeal. He challenges (1) the sufficiency
of the evidence to prove his guilt, (2) definitions in the jury charge, (3) instructions



                                           8
in the jury charge, and (4) the failure of the trial court to read its answer to the
jury’s question in open court.
                                 IV. Standards of Review
      We apply the sufficiency standard outlined in Jackson and its progeny to
Appellant’s sufficiency issue. Jackson v. Virginia, 443 U.S. 307, 318 (1979);
Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010); Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007).            We review all of the evidence
introduced by both the State and Appellant in the light most favorable to the jury’s
verdict and decide whether any rational trier of fact could have found each element
of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319. We measure
sufficiency of the evidence against a hypothetically correct jury charge. Curry v.
State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). A hypothetically correct jury
charge “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. (quoting Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997)). The trier of fact holds the responsibility to resolve
conflicts in the testimony fairly, weigh the evidence, and draw reasonable
inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. We are to
resolve inconsistencies in the testimony in favor of the verdict. Curry, 30 S.W.3d
at 406.
      We review an alleged jury charge error that the defendant did not object to at
trial in two steps: We determine “(1) whether error existed in the charge; and
(2) whether sufficient harm resulted from the error to compel reversal.” Ngo v.
State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). We will not reverse for
charge error “unless the record shows ‘egregious harm’ to the defendant.” Id. In
our determination of whether an error caused egregious harm, we review the entire

                                           9
jury charge, the state of the evidence, the arguments of counsel, and any other
relevant information in the record. Id. at 750 n.48.
                                    V. Analysis
      A. Sufficiency of the Evidence
      Appellant argues that the evidence is insufficient to prove that he committed
the alleged offense. Specifically, he contends that “E.M.’s testimony was marked
by inconsistencies; the delay in reporting and lack of physical evidence undercut
the reliability of her testimony; E.M. had numerous motives for fabricating her
testimony; her testimony was directly controverted by several witnesses; and her
testimony is contrary to the evidence of [Appellant’s] good character.”
      The jury could have convicted Appellant if it found beyond a reasonable
doubt that Appellant intentionally or knowingly caused the penetration of the
sexual organ of E.M. by his sexual organ on two separate occasions over a span of
more than thirty days, that Appellant was at least seventeen years of age, and that
E.M. was under the age of fourteen when both of these acts occurred. See PENAL
§§ 21.02(b), 22.021(a)(1)(B)(i), (a)(2)(B). The testimony of E.M., the forensic
interviewer, and the SANE showed that Appellant intentionally or knowingly
caused the penetration of E.M.’s vagina with his penis on two separate occasions
during a period of more than thirty days in duration. Appellant was over seventeen
years of age, and E.M. was under the age of fourteen when those acts occurred.
      E.M.’s testimony alone provides sufficient evidence to support the
allegations that Appellant twice committed the offense of aggravated sexual assault
as alleged in the indictment and included in the jury charge. See TEX. CODE CRIM.
PROC. ANN. art. 38.07 (West Supp. 2014); Villalon v. State, 791 S.W.2d 130, 134
(Tex. Crim. App. 1990) (concluding child victim’s unsophisticated terminology
alone established element of penetration beyond a reasonable doubt). We disagree
with Appellant that this case matches the hypothetical situation described in

                                         10
Brooks to illustrate a scenario in which the evidence would be insufficient under
Jackson. In the hypothetical, the jury convicted “A” of robbery based upon the
testimony of a witness who identified “A” as the robber of a convenience store,
even though a surveillance videotape clearly showed that “B” committed the
robbery. See 323 S.W.3d at 907. We have found no such evidence in the record.
We have reviewed the record, and as we have previously outlined, we hold that
sufficient evidence exists to convict Appellant of the alleged offense. See Jackson,
443 U.S. at 319. We overrule Appellant’s first issue.
      B. Jury Charge Error
      Appellant did not object to the jury charge at trial. Therefore, we will not
reverse unless there is error in the charge and the error caused Appellant egregious
harm. See Ngo, 175 S.W.3d at 743–44. Egregious harm exists if the error affected
the very basis of the case, deprived Appellant of a valuable right, vitally affected a
defensive theory, or caused Appellant to not have a fair and impartial trial. See
Jourdan v. State, 428 S.W.3d 86, 97–98 (Tex. Crim. App. 2014) (quoting
Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007)); Almanza v. State,
686 S.W.2d 157, 171–72 (Tex. Crim. App. 1985) (op. on reh’g).
             1. Culpable Mental State Definitions
      Appellant challenges the definitions in the jury charge for “intentionally”
and “knowingly.” Appellant claims that aggravated sexual assault involves both a
“result of conduct” offense and a “nature of conduct” offense but that the jury
charge limited the definitions to a “result of conduct” offense. Appellant cites a
previous case out of this court in which we concluded that aggravated sexual
assault involved both “result of conduct” and “nature of conduct” elements.
Baker v. State, 94 S.W.3d 684, 690–91 (Tex. App.—Eastland 2002, no pet.). Since
our opinion in Baker, however, the Court of Criminal Appeals has explicitly stated
that aggravated sexual assault is a “nature-of-conduct” statute. Gonzales v. State,

                                         11
304 S.W.3d 838, 849 (Tex. Crim. App. 2010). Although more than one “conduct
element” may apply to a single offense, in light of Gonzales, we disavow our
analysis in Baker.
      But we need not reach this issue to resolve this case because, even if we
assume, without deciding, that there is error in the jury charge, Appellant did not
suffer egregious harm. At trial, Appellant did not contest his culpable mental state;
he denied any touching or penetration of E.M. Therefore, an erroneous instruction
of the culpable mental state could not egregiously harm him. See Jones v. State,
229 S.W.3d 489, 494 (Tex. App.—Texarkana 2007, no pet.) (holding that the
defendant’s intent, “while it was a part of the State’s required proof, was not a
contested issue and consequently [the defendant] could not be egregiously harmed
by the definition of the intentional and knowing state of mind”).
      Additionally, if there is error in the jury charge, we “may consider the
degree, if any, to which the culpable mental states were limited by the application
portions of the jury charge” to determine egregious harm. Patrick v. State, 906
S.W.2d 481, 492 (Tex. Crim. App. 1995) (quoting Hughes v. State, 897 S.W.2d
285, 296 (Tex Crim. App. 1994)) (internal quotation marks omitted).              The
application portion of the jury charge instructed the jury as follows:
             The first alleged act of sexual abuse is that the [Appellant]
      committed the offense of aggravated sexual assault. Aggravated
      sexual assault is an act of sexual abuse if the state proves, beyond a
      reasonable doubt, two elements. The elements are that —

                   a. the [Appellant] intentionally or knowingly
             caused the penetration of the sexual organ of another
             person by any means; and

                   b. the other person was a child . . . younger than
             fourteen years of age.




                                         12
The instructions for the second alleged act of sexual abuse were identical to the
instructions for the first alleged act except the words “first alleged act” were
replaced with “second alleged act.” See PENAL § 22.021(a)(1)(B)(i). Even if we
assume, without deciding, that the definitions of intentionally and knowingly were
erroneous, the application section correctly instructs the jury because it follows the
language of the statute. See id. Therefore, the jury charge caused no egregious
harm. See Reed v. State, 421 S.W.3d 24, 30 (Tex. App.—Waco 2013, pet. ref’d)
(“When the application paragraph correctly instructs the jury on the law applicable
to the case, this mitigates against a finding of egregious harm.”). We hold that,
even if the definitions contained errors, those errors did not egregiously harm
Appellant. See Ngo, 175 S.W.3d at 743–44; Reed, 421 S.W.3d at 30; Jones, 229
S.W.3d at 494. We overrule his second issue.
             2. Instructions on Unanimity
      In his third issue, Appellant asserts the jury charge was erroneous in its
instructions that the jury “need not all agree on which specific acts of sexual abuse
were committed by the defendant” without a limiting instruction that the jury could
only consider the two acts of sexual abuse included in the indictment and not the
extraneous offense evidence presented regarding touching E.M.’s breast. In a
continuous sexual abuse case, a jury need not agree unanimously on which specific
acts of sexual abuse the defendant committed; it must only agree that the defendant
committed two or more acts of sexual abuse over a period of thirty days or more in
duration. PENAL § 21.02(d). Additionally, “touching . . . the breast of a child” is
not an act of sexual abuse for purposes of the offense of continuous sexual abuse of
a young child. Id. § 21.02(c)(2).
      The jury heard evidence that Appellant touched E.M.’s breast. The jury
charge instructed the jury that they “must all agree on elements 1, 2, 3, and 4 listed
above,” which contained two alleged acts of aggravated sexual assault, the time

                                         13
frame, the age of the actor, and the age of the victim, respectively. Additionally,
the jury charge instructed the jury that “[w]ith regard to element 1, you need not all
agree on which specific acts of sexual abuse were committed by the defendant or
the exact date when those acts were committed. You must, however, all agree that
the defendant committed two or more acts of sexual abuse.” Element one only
contained two alleged acts of sexual abuse, and both were that Appellant
“intentionally or knowingly caused the penetration of the sexual organ of [a child]
by any means.” The jury charge contained no language related to the breast-
touching incident. The State, however, referenced the breast-touching incident in
its closing argument but also stated that the jury would not “decide whether
[Appellant is] guilty of that offense.” The instruction that Appellant complains of
in the jury charge used substantially the same language as the statute and was not
erroneous. See PENAL § 21.02(d).
       We hold that, whether or not the charge contained any error, the charge did
not cause egregious harm because the charge properly instructed the jury that it
must find that Appellant committed at least two of the two alleged acts of sexual
abuse, because the charge contained no reference to the breast-touching incident,
and because the State told the jury in argument that they would not decide whether
Appellant was guilty of the breast-touching incident. See Ngo, 175 S.W.3d at 750
n.48. The jury could not have been confused or mistakenly believed that it could
convict Appellant based on the breast-touching incident. We overrule Appellant’s
third issue.
       C. Communication With the Jury
       Appellant complains that the trial court erred by not reading its answer to the
jury’s question in open court. He alleges that he did not expressly waive this right.
See TEX. CODE CRIM. PROC. ANN. art. 36.27 (West 2006). A trial court does not
give additional instructions when it refers the jury to the jury charge; thus,

                                         14
noncompliance with Article 36.27 does not result in reversible error in such a
situation. See McFarland v. State, 928 S.W.2d 482, 517–18 (Tex. Crim. App.
1996) (citing Nacol v. State, 590 S.W.2d 481, 486 (Tex. Crim. App. 1979)),
overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 n.18 (Tex.
Crim. App. 1998). The jury sent a note to the trial court and requested the dates or
time span when the sexual abuse occurred. After discussing the jury’s note with
the parties, the trial court ultimately referred the jury to the written instructions
found in the jury charge and did not answer the question. Neither the State nor
Appellant objected to the court’s actions.        We hold that no reversible error
occurred in connection with any noncompliance with Article 36.27 because the
trial court did not further instruct the jury. See id. We overrule Appellant’s fourth
issue.
                                     VI. Conclusion
         We hold, after a review of the record, that (1) sufficient evidence existed to
convict Appellant of the offense of continuous sexual abuse of a young child;
(2) the jury charge, even if it contained errors in the definitions or instructions, did
not cause Appellant egregious harm; and (3) no reversible error occurred when the
trial court referred the jury to the jury charge. See Jackson, 443 U.S. at 319; Ngo,
175 S.W.3d at 743–44; McFarland, 928 S.W.2d at 517–18.
                                VII. This Court’s Ruling
         We affirm the judgment of the trial court.




March 20, 2015                                               MIKE WILLSON
Do not publish. See TEX. R. APP. P. 47.2(b).                JUSTICE
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.


                                           15
