Jose Blanco-Lazo v. State ( 2016 )

AFFIRMED; Opinion Filed December 27, 2016.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-01166-CR
JOSE BLANCO-LAZO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F14-34222-J
MEMORANDUM OPINION
Before Justices Lang, Myers, and Evans
Opinion by Justice Myers
A jury convicted appellant Jose Blanco-Lazo of sexual assault of a child under the age of
fourteen and set punishment at forty-four years in prison and a $10,000 fine. In three issues, he
alleges jury charge error and insufficiency of the evidence. We affirm.
BACKGROUND AND PROCEDURAL HISTORY
The complainant in this case testified that, in July of 2014, she lived in a four bedroom
trailer with her mother, step-father, and a friend of her mother’s, Rosa. Appellant, known to the
complainant as Ruben, and his common law wife, Bessie, also lived in the trailer. Appellant had
moved into the trailer in 2010. The complainant liked appellant and thought he was handsome.
Bessie and the complainant, however, did not get along very well. The complainant’s mother
testified that her daughter once told her that Bessie “had scolded her because she had tried to go
get close” to appellant, and that Bessie was jealous.
The complainant testified that the first instance of sexual abuse occurred when she was
approximately eight years old. Appellant touched her on her vagina over her clothes, which felt
“[a] little bit good and weird.” The complainant also testified about another occasion when
appellant tried to convince her to have sex with him and she refused. He convinced her to lie on
the floor on her side outside of his bedroom door and reached his fingers through the crack under
the door and penetrated her vagina. She described it as feeling “[g]ood and weird and hurtful,
too.” She said she did this “because [appellant] told me to.” The complainant said this occurred
when she was approximately eleven or twelve years old. On that same day, she went into his
room when he asked her to and he started to touch and kiss her; she left the room when someone
knocked on the door. The complainant testified that appellant touched her vagina and “boobs”
and kissed her on the mouth and neck. Appellant asked her if she wanted him to put his “dick”
inside of her vagina but she told him no, fearing pregnancy, diseases, and “stuff.”
The complainant testified about another incident when appellant came into her room and
put his finger in her vagina and licked her “boobs.” This also took place when the complainant
was about eleven or twelve years old. On another occasion, he positioned her upside down on
the couch, pulled down her pants and underwear, and licked her vagina. This was the first time
appellant had licked her vagina; the complainant recalled that it felt “good and weird.” The
complainant testified she was twelve years old when this occurred. She testified that appellant
stopped licking her vagina when they heard the sound of her mother’s car approaching the trailer,
and he ran into his bedroom. The complainant then went to her room and applied perfume to her
body so that her mother would not notice anything was wrong. The complainant also described
another time when she was in the kitchen with appellant. He pulled down her pants and
underwear, positioned her standing with her legs open, and licked her vagina. When she got
tired, she told him to stop, which he did. She testified that she was twelve when this occurred.
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Another incident occurred one night when Bessie was not home. Appellant told the complainant
to go to his room. The complainant testified that, while they were clothed, appellant “tried to put
his thing on my part.” He also removed her pants and underwear and licked her vagina. He tried
to convince her to have sex with him, but she became angry when he kept asking her for sex
despite her refusal, and she left the room. The complainant did not recall how old she was when
this occurred.
On July 29, 2014, the complainant, then eleven years of age, was watching television on
the couch in the living room of the trailer. Her mother was asleep in her bedroom, Rosa was in
her bedroom, and appellant and Bessie were in their bedroom. The complainant testified that
appellant came out of his room approximately four times while the complainant was on the
couch. Each time, he would touch the complainant on her breasts and vagina with his hands––on
both the outside and inside of her clothes. Appellant also touched the complainant on the inside
of her vagina. The complainant asked appellant if Bessie was coming; he told her no. Appellant
asked the complainant if his touching felt good. She told him no.
At some point Bessie came into the living room and asked the complainant if she was
having “a relationship” with appellant. Bessie was angry and yelling. At first, the complainant
denied that she was having “a relationship” with appellant. As Bessie continued to question her,
the complainant stated that they did have “a relationship” and, after further questioning, that
there was nothing between them but that appellant was harassing her.
The noise woke up the complainant’s mother, who came out into the living room to see
what was the matter. The complainant’s mother asked Bessie what was happening, and Bessie
told her that nothing was happening––they were just talking. Bessie went back to her bedroom.
She appeared to be upset and jealous, according to the complainant’s mother. When the
complainant’s mother asked her what was going on, the complainant denied that anything was
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wrong. But her mother could tell she was upset, and she looked like she was about to cry. The
complainant’s mother asked her again what was happening, and the complainant said appellant
had been touching her. The complainant looked like she wanted to cry and went to her room.
Something about her daughter’s expression made the complainant’s mother believe her. She
went to appellant’s bedroom, knocked on the door, and asked him to come out and tell her what
had happened. The complainant’s mother could hear Bessie telling appellant to open the door,
but he refused to come out. Appellant’s refusal to speak with her convinced the complainant’s
mother that something had happened. She called the police.
The complainant testified that she had previously told her mother about the abuse, but her
mother did not believe her, which made the complainant feel “[s]ad and disappointed.” The
complainant also told her father and a friend that appellant was touching her. Her father, who
lived out of state, told the complainant to tell her mother. The complainant’s mother testified
that, approximately one year before the July 2014 incident that led to appellant’s arrest, the
complainant had told her that appellant was touching her. The complainant’s mother confronted
appellant, and he swore nothing had happened. The complainant’s mother did not contact the
police.
The complainant testified that it was not easy to remember all of the times when
appellant had touched her because she did not like to think about it or talk about it. She testified
that the event that stood out the most in her mind was the night when the police arrested
appellant. On cross-examination, the complainant testified that she did not remember telling the
police that appellant had tried to touch her that night, but she was able to stop him. The
complainant also testified that she had been seeing a counselor for several years, and that she
told the counselor about the abuse after appellant was arrested. Asked on cross-examination if
she had ever told anyone that someone other than appellant touched her inappropriately, the
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complainant replied, “Yes.”
Irving Police Officer Jonathan Long was on patrol with his partner on the night of July
29, 2014, when he was dispatched to the trailer where the complainant lived to investigate a
sexual assault. When they arrived at the scene, Officer Long first tried to speak with appellant,
but the officer, who did not speak Spanish, had difficulty communicating with him. Despite the
language barrier––Officer Long could understand a few words of basic Spanish from his training
at the academy and eight years in the Irving Police Department, and appellant spoke some
English––Officer Long was able to gather some information from appellant. He told Officer
Long the only thing that happened between him and the complainant that night was that the
complainant asked him to get her some sort of snack and he refused.
Officer Long next spoke with the complainant and the complainant’s mother. Because
the complainant’s mother did not speak English, Officer Long spoke to the complainant and her
mother together and the complainant translated what her mother was saying. Officer Long
testified that the complainant told him appellant attempted to touch her chest and vagina when
she was on the couch, but she was able block his hands and then ran and told her mother. Officer
Long recalled that the complainant looked as though she had been crying and that she seemed
genuinely scared and sincere as she told him about this and other past incidents of abuse by
appellant. Officer Long questioned the complainant further to determine if a sexual assault had
occurred. She told him that, on the previous evening, appellant had inserted his finger into her
vagina against her will. She also told him it was not the first time appellant had done this and
that he had made comments to her about wanting to have sex with her and perform oral sex on
her. Appellant was arrested that night and taken to jail.
The complainant was forensically interviewed by Nakisha Biglow at the Irving Family
Advocacy Center on July 30, 2014. The complainant was eleven years of age at the time of the
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interview. She told Biglow appellant had sexually abused her starting when she was ten years
old. She described instances when she would be laying on the couch and appellant would touch
her on her “boobs” and her “part” both on top of and under her clothes. Biglow added that when
the complainant referred to her “part,” she was referring to her vagina.
The complainant detailed one occasion when appellant told her to take a shower. She
refused at first, but then she complied and got into the shower. Appellant entered the bathroom
while she was in the shower but left when she told him to get out. The complainant got out of
the shower and wrapped herself in a towel. When she left the bathroom, appellant was waiting
for her in the hall and convinced her to remove her towel. He laid her on the floor and licked her
vagina, which the complainant said felt “weird.” He also put his fingers inside of her, which she
described as feeling “weird,” and that it hurt.
The complainant described another occasion when appellant pulled down her pants and
panties and licked her “boobs.” The complainant asked Biglow if appellant’s penetration of her
with his fingers meant that she was no longer a virgin. The complainant also described the
sensation of appellant touching her vagina with his hand as feeling like he had put water on her
privates. The complainant told Biglow that the day before the interview appellant tried to touch
her, but his then-girlfriend saw him and confronted her about it. The complainant told Biglow
that appellant had sexually abused her so many times she could not specifically remember each
time, but it was something that would happen all the time and many of the instances occurred
when she was on the couch.
Appellant was indicted for continuous sexual abuse of a child under the age of fourteen.
See TEX. PENAL CODE ANN. § 21.02. The alleged acts of sexual abuse were indecency with a
child by contact and aggravated sexual assault of a child under the age of fourteen. See id. §§
21.02(c)(2), 21.02(c)(4). The indictment alleged appellant committed indecency with a child by
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touching the complainant’s genitals with his hand. See id. §§ 21.11(a)(1), 21.11(c)(1).
Appellant was alleged to have committed aggravated sexual assault of a child, according to the
indictment, by (1) penetrating the complainant’s sexual organ with his finger and (2) causing his
mouth to contact the complainant’s sexual organ. See id. §§ 22.021(a)(1)(B)(i), (a)(1)(B)(iii),
(a)(2)(B). The jury convicted appellant of the lesser-included offense of aggravated sexual
assault of a child and set punishment at forty-four years in prison and a $10,000 fine. This
appeal followed.
DISCUSSION
I. Absence of Unanimity Instruction
In his first issue, appellant contends the trial court violated his right to a unanimous jury
verdict by allowing the jurors to convict him of the lesser-included offense of aggravated sexual
assault of a child without requiring them to agree on a specific instance of conduct and on a
specific statutory alternative.
When analyzing a claim of jury charge error on appeal, we first determine if there was an
error, and if so, whether the error caused sufficient harm to warrant a reversal. Ngo v. State, 175
S.W.3d 738, 743 (Tex. Crim. App. 2005). Under Almanza, the amount of harm necessary to
warrant a reversal depends on whether the appellant objected to the alleged error in the jury
charge. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013); Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g), superseded on other grounds by rule as
stated in Rodriguez v. State, 758 S.W.2d 787, 788 (Tex. Crim. App. 1988). If the appellant
objected to the complained-of portion of the jury charge, then the record need only show he
suffered some harm as a result of the error to obtain a reversal. Reeves, 420 S.W.3d at 816; Ngo,
175 S.W.3d at 743. But if the appellant failed to object to the complained-of error, he must show
he suffered egregious harm to be entitled to a reversal. Reeves, 420 S.W.3d at 816; Ngo, 175
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S.W.3d at 743. In determining whether the appellant suffered egregious harm, we consider (1)
the complete jury charge; (2) the arguments of counsel; (3) the entirety of the evidence, including
the contested issues and weight of the probative evidence; and (4) any other relevant factors
revealed by the record as a whole. Hollander v. State, 414 S.W.3d 746, 750 (Tex. Crim. App.
2013).
Jury unanimity is required in all criminal cases. TEX. CONST. art. V, § 13; TEX. CODE
CRIM. PROC. ANN. art. 36.29(a); Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011). In
Texas, the jury must “reach a unanimous verdict about the specific crime that the defendant
committed.” Cosio, 353 S.W.3d at 771. This means “the jury must agree upon a single and
discrete incident that would constitute the commission of the offense alleged.” Id. (quoting
Stuhler v. State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007)). The unanimity requirement
ensures the jury agrees on the factual elements underlying the charged offense, not that it merely
agrees that a statute was violated. Francis v. State, 36 S.W.3d 121, 125 (Tex. Crim. App. 2000).
“[N]on-unanimity may occur when the State charges one offense and presents evidence that the
defendant committed the charged offense on multiple but separate occasions.” Cosio, 353
S.W.3d at 772. Each of the multiple incidents establishes a different offense or “unit of
prosecution.” Id. In such a situation, it is the trial court’s responsibility to ensure unanimity by
instructing the jury in the charge that its verdict must be unanimous as to a single incident
offense or unit of prosecution among those presented by the State. Id.
The Texas Court of Criminal Appeals has recognized three variations that may result in
non-unanimous verdicts: (1) “non-unanimity may occur when the State presents evidence
demonstrating the repetition of the same criminal conduct, but the actual results of the conduct
differed”; (2) “non-unanimity may occur when the State charges one offense and presents
evidence that the defendant committed the charged offense on multiple but separate occasions”;
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and (3) “non-unanimity may occur when the State charges one offense and presents evidence of
an offense, committed at a different time, that violated a different provision of the same criminal
statute.” Cosio, 353 S.W.3d at 771–72.
Appellant was charged with continuous sexual abuse of a child. The jury charge included
instructions on the lesser-included offenses of indecency with a child and aggravated sexual
assault of a child. Neither side objected to the charge, which provided in part as follows:
Our law provides that a person commits the offense of Aggravated Sexual Assault
of a child if the person intentionally or knowingly causes the contact or
penetration of the mouth, anus or sexual organ 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.
....
You are further instructed that in order to find the defendant guilty of the offense
of Continuous Sex Abuse of a Child, you are not required to agree unanimously
on which specific acts of sexual abuse were committed by the defendant or the
exact date when those acts were committed. However, in order to find the
defendant guilty of the offense of Continuous Sex Abuse of a Child, you must
agree unanimously that the defendant, during a period that is 30 or more days in
duration, beginning on or after September 1st, 2007, committed two or more acts
of sexual abuse.
....
Now, bearing in mind the foregoing instructions, if you find and believe from the
evidence, beyond a reasonable doubt, that the defendant, JOSE BLANCO LAZO,
on or about the 29th day of July, 2014 in the County of Dallas, 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 [the complainant], a child younger than 14 years
of age, hereinafter called complainant, namely by: the penetration of the
complainant’s female sexual organ by the Defendant’s finger or by contact
between the mouth of the defendant and the sexual organ of the complainant or by
the contact between the hand of the Defendant and the genitals of the complainant
with the intent to arouse or gratify the sexual desire of the Defendant, then you
will find the defendant guilty of the offense of Continuous Sex Abuse of a Child,
as charged in the indictment.
If you do not so believe, or if you have a reasonable doubt thereof, then you will
acquit the defendant of the offense of Continuous Sex Abuse of a Child and
consider next whether the defendant is guilty of the lesser included offense of
Aggravated Sexual Assault of a Child, as included in the indictment.
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“Aggravated Sexual Assault of a Child” is defined on Page 2 of this Charge and
has the same meaning here.
Now, if you find and believe from the evidence, beyond a reasonable doubt, that
the defendant, JOSE BLANCO LAZO, on or about the 29th day of July, 2014 in
the County of Dallas, State of Texas, did then and there, intentionally or
knowingly cause the penetration of the sexual organ of [the complainant], a child,
hereinafter called complainant, who was not then the spouse of Defendant, by the
finger of the Defendant or cause contact between the mouth of the Defendant and
the sexual organ of the complainant, and, at the time of the offense, the child was
younger than 14 years of age, then you will find the defendant guilty of the
offense of Aggravated Sexual Assault of a Child, as included in the indictment.
....
After you retire to the jury room, you will select one of your members as
foreperson. It is the foreperson’s duty to preside at your deliberations, vote with
you, and when you have unanimously agreed upon a verdict, to certify to your
verdict by using the appropriate form attached hereto, and signing the same as
foreperson.
....
After you have reached a unanimous verdict or if you desire to communicate with
the Court, please use the jury call button on the wall and one of the bailiffs will
respond [emphasis added].
The State concedes that the jury charge instructions for the lesser-included offense of aggravated
sexual assault permitted a non-unanimous verdict based on the evidence presented in this case.
The jury had multiple options for finding that appellant committed aggravated sexual assault, yet
like the charge in Cosio, the charge in appellant’s case failed to instruct the jury that its verdict
had to be “unanimous as to a single offense or unit of prosecution among those presented.”
Cosio, 353 S.W.3d at 771–72. The jury, in other words, was not required to agree on “a single
and discreet incident.” Id. at 771. This was error. We must now turn to the question of whether
appellant suffered egregious harm.
1. The Entire Jury Charge
Applying the various factors, the court of criminal appeals has repeatedly noted that,
when more than one incident of criminal conduct could be relied on for conviction, generic
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language regarding unanimity is insufficient to apprise the jury of the unanimity requirement.
See Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015) (noting that several generic
requirements of unanimity cannot ensure a unanimous verdict when there is evidence of multiple
incidents); Casio, 353 S.W.3d at 773 (“Although the instruction’s ‘boilerplate’ section informed
the jury that it must be unanimous, the jury could have understood it to mean that they had to be
unanimous about the offense in general, not a particular incident comprising the offense.”).
Because the charge had only generic references to unanimity, this factor weighs in favor of a
finding of egregious harm. See Arrington, 451 S.W.3d at 841.
2. The Entirety of the Evidence
Under this factor, “we look to the state of the evidence to determine whether the evidence
made it more or less likely that the jury charge caused appellant actual harm.” Id. Appellant
argues that the jury’s rejection of the offense of continuous sexual abuse shows they did not find
the complainant to be credible and that this should support a finding of egregious harm. It is
apparent from the record that the complainant’s testimony regarding the time frame for the abuse
was unclear and uncertain. For example, the complainant testified that some of the incidents of
sexual abuse occurred when she was twelve, but the complainant was only eleven years of age
on the date appellant was arrested––she turned twelve several months later. The complainant
also testified she did not recall precisely when different instances of sexual abuse occurred.
Based on this, the jury may have simply concluded that the element of the length of time needed
to convict appellant of continuous sexual abuse was not proven beyond a reasonable doubt.
Even so, however, the complainant testified in detail about numerous instances of sexual abuse
that would support the conviction for the lesser-included offense of aggravated sexual assault.
Furthermore, appellant’s theory of the case was that the complainant was mentally unstable and
that she fabricated the allegations of abuse. Thus, appellant’s trial strategy left the jury with an
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all-or-nothing decision when evaluating the alleged conduct––either he was guilty or he was not.
See Ruiz v. State, 272 S.W.3d 819, 826–27 (Tex. App.—Austin 2008, no pet.) (citing Warner v.
State, 245 S.W.3d 458, 461–62 (Tex. Crim. App. 2008)); see also Arrington, 451 S.W.3d at 842.
If the jury had believed appellant’s theory, it would have found him not guilty of aggravated
sexual assault. Instead, in finding him guilty, the jury necessarily found the complainant to be
credible and disbelieved appellant’s defense. We therefore conclude this factor does not support
a finding of egregious harm.
3. The Arguments of the Parties
Under this factor, we must determine whether any statements made by the State,
appellant’s trial attorneys, or the trial court exacerbated or ameliorated the error in the charge.
Arrington, 451 S.W.3d at 844.
Neither side referenced unanimity during opening statements. The State’s closing
argument focused primarily on the charged offense of continuous sexual abuse of a child. The
State told the jury they did not have to be unanimous regarding which offenses constituted
continuous sexual abuse as long as they were unanimous that there were two or more offenses
over a thirty-day or longer period. The State did not make any statements regarding unanimity
as to the lesser-included offenses in the charge. Defense counsel argued the complainant was not
credible and that nothing occurred between appellant and the complainant. Defense counsel did
not refer to unanimity.
The jury potentially could have understood the State’s argument to mean they did not
have to be unanimous regarding the lesser-included offenses, given the lack of a jury instruction
to the contrary. But there is no evidence in this record to establish jury confusion and,
accordingly, this shows only theoretical and not actual harm. See Carter v. State, No. 04–15–
00319–CR, 2016 WL 2595071, at *8 (Tex. App.––San Antonio May 4, 2016, no pet.) (mem. op.,
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not designated for publication) (finding that State’s argument, which discussed unanimity
regarding charge of continuous sexual abuse but not the charges of indecency, showed only
theoretical as opposed to actual harm). Consequently, this factor weighs neither for nor against a
finding of egregious harm. Id. (citing Arrington, 451 S.W.3d at 844).
4. Other Relevant Factors
During voir dire, the State read the indictment and then explained the elements of
continuous sexual abuse to the panel, including the separate alleged sexual offenses. The State
later gave the following explanation of the unanimity requirement regarding continuous sexual
abuse:
So let’s go back to something I want to make sure I made clear. On the
indictment, there were three different acts alleged, okay? The first act was
penetration of the complainant’s female sexual organ by the defendant’s finger
and by contact between the mouth of the defendant and the sexual organ of the
complainant.
And my ‘ands’ are ‘or’ when I’m reading this, okay? You know what I mean? It
doesn’t mean all three. And by the contact between the hand of the defendant and
the genitals of the complainant with the intent to arouse and gratify the sexual
desire of the defendant.
So for the purposes of this case, it’s continuous, right? We’ve alleged that during
a period that was 30 or more days in duration that these two or more things
happened. Understand that when we get you in the box and as a jury, you don’t
have to be unanimous on which two of the three things took place.
A few of you could agree that it was mouth to vagina, a few of you could agree
that it was hand to genitals, or a few of you could agree that it was penetration of
the female sexual organ of the defendant.
You don’t have to be unanimous on what exactly the acts were. You just have to
agree that two or more of the acts took place in a period that exceeded 30 days.
Are we clear on that?
(Panel members respond.)
[PROSECUTOR]: It can be a combination of the sex acts, just one time or two or
more times, as long as y’all are unanimous in the combination––in that these
offenses have happened, doesn’t matter which two of three; you just have to be
unanimous that they did, in fact, happen and that it was a period that exceeded 30
days or more. We all understand?
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The State then explained the lesser-included offenses, including the two alleged aggravated
sexual assault offenses and their respective punishment ranges. A panel member asked if the
punishments were “additive” for each offense if the separate offenses were proven. The relevant
portion of the record reads as follows:
VENIREPERSON: Are the punishments additive for each offense? So say two
offenses were––you could only say the defendant was guilty after trial if two––
you’re saying if two were proven to the jury and they were unanimously voted in
that response.
But are––is the punishment additive, meaning that if you have five to 99 years,
are there two counts of five to 99 years and that’s additive, or does that mean
that––you know, do they stand by themselves or is it just together?
[PROSECUTOR]: I believe the answer to the question is as far as being additive,
the way it is proven on its face kind of makes it additive because it’s been three––
two or more have been alleged. So that would have to be proven.
So you as the jury would go back and decide that only one was proven, then you
get to the individual counts where maybe you just have aggravated sexual assault
of a child because you believe it was mouth to vagina or finger into vagina,
something to that effect.
That’s when it starts to break out. But on the face of this indictment, it’s––they’re
all proven, so that’s––I think that's the additive you’re asking about, and that’s
why it starts at 25 [emphasis added].
Appellant argues that the State’s statement “mouth to vagina or finger into vagina,
something to that effect,” could have erroneously instructed the jury that they could convict on
the lesser-included offenses without being unanimous. But nothing in the State’s response to
panel member’s question indicated that the jury’s verdict on a lesser-included offense could be
without unanimity as to a single offense. Additionally, the prosecutor stated that if the jury
found “only one” offense occurred, they would reach the lesser-included offenses. The
discussion concerned punishment, not guilt, and the State’s focus was on explaining how the
individual offenses combined to create the offense of continuous sexual abuse with a minimum
punishment of twenty-five years. Furthermore, the trial court subsequently explained the issue to
the jury as follows:
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THE COURT: Now, you may very well decide that we don’t believe that he
committed these offenses over a 30-day period of time, and that’s an element of
the offense that the State has to prove. If you don’t believe that he committed
these offenses over a 30-day period of time, then you may very well find the
defendant not guilty of that offense, continuous sexual abuse of a child.
But you may believe that the defendant committed one offense of aggravated
sexual assault of a child, then you would find the defendant guilty of a lesser-
included offense of aggravated sexual assault of a child.
Is that––does that make sense? And if you found him guilty of––if you found the
defendant guilty of the lesser-included offense, then you would then have to
assess punishment between a range of five to 99 years or life. Okay?
So to the––it’s additive in the sense that if there’s two offenses and they’re over
that period of time, then it is 25 to life. Okay? But if it’s––if you determine that
it’s only one offense, then it is five to 99 or two to 20, depending on the range of
punishment on that particular offense.
Does that––does that help you-all in any way? Okay. All right. Go ahead. I’ll
give you ten more––15 more minutes
We again note that the context of the trial court’s words was explaining the applicable
punishment ranges. Neither the State nor the court told the venire that if they found appellant
guilty on only a single offense, they did not have to be unanimous. Rather, they each stressed it
would be a single offense of the types alleged, as opposed to the multiple offenses needed to find
continuous sexual abuse. While the State’s statement could have led jurors to believe they could
convict on the lesser-included offenses without being unanimous, this is speculative and, thus,
will not support a finding of egregious harm. See id. (citing Arrington, 451 S.W.3d at 840).
Consideration of the Four Factors
The only factor here that weighs in favor of finding egregious harm is the consideration
of the entirety of the jury instructions—and the absence of any non-generic language regarding
unanimity. In Arrington and Cosio, the court of criminal appeals found no egregious harm even
though, in both cases, that factor weighed in favor of egregious harm. See Arrington, 451
S.W.3d at 840–45; Cosio, 353 S.W.3d at 777–78; see also Carter, 2016 WL 2595071, at *9.
Therefore, we conclude the trial court’s failure to provide a proper instruction on unanimity did
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not cause appellant egregious harm. See Arrington, 451 S.W.3d at 840–45; Cosio, 353 S.W.3d at
777–78. Although the jury charge failed to instruct that the jurors must agree unanimously on a
single offense or unit of prosecution, analysis of the remaining factors shows appellant did not
suffer egregious harm. We overrule appellant’s first issue.
II. Enlargement of the Alleged Offense
In his second issue, appellant contends the trial court enlarged the indictment by defining
aggravated sexual assault as including penile penetration of the complainant’s vagina.
The indictment against appellant alleged that, on or about July 29, 2014, in Dallas
County, Texas, he did 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 [the complainant], a child younger than 14 years of
age, hereinafter called complainant, namely by: the penetration of the
complainant’s female sexual organ by the Defendant’s finger and by contact
between the mouth of the defendant and the sexual organ of the complainant and
by the contact between the hand of the Defendant and the genitals of the
complainant with the intent to arouse and gratify the sexual desire of the
Defendant[.]
The indictment included two possible manners and means of committing aggravated
sexual assault of a child as components of the offense of continuous sexual abuse of a child: (1)
penetration of the sexual organ of the complainant by the finger of appellant; and (2) contact
between the mouth of appellant and the sexual organ of the complainant. See TEX. PENAL CODE
ANN. §§ 22.021(a)(1)(B)(i) (causing penetration of the sexual organ of a child by any means),
22.021(a)(1)(B)(iii) (causing the sexual organ of a child to contact or penetrate the mouth of the
actor). However, the definition of aggravated sexual assault that was included in the abstract
portion of the jury charge did not track the language of the indictment. It stated:
Our law provides that a person commits the offense of Aggravated Sexual Assault
of a child if the person intentionally or knowingly causes the contact or
penetration of the mouth, anus or sexual organ of the child by the sexual organ of
another person, including the actor, and at the time of the offense the child is
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younger than 14 years of age.
This is a correct statement of the offense under the law, but it does not relate to the offense as
charged in the indictment. Nonetheless, the application paragraphs for both the charged offense
of continuous sexual abuse of a child and the lesser-included offense of aggravated sexual assault
of a child tracked the language of the indictment and made no reference to penile penetration.
Appellant did not object to the language in the definition in the charge.
It 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); Hutch v. State,
922 S.W.2d 166, 172 (Tex. Crim. App. 1996); Campbell v. State, 910 S.W.2d 475, 477 (Tex.
Crim. App. 1995). The abstract paragraphs serve as a glossary to help the jury understand the
meaning of concepts and terms used in the application paragraphs of the charge. Crenshaw, 378
S.W.3d at 466; Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other
grounds by Malik v. State, 953 S.W.2d 234(Tex. Crim. App. 1997). An abstract charge on a
theory of law that is not applied to the facts does not authorize the jury to convict upon that
theory. Crenshaw, 378 S.W.3d at 466; Hutch, 922 S.W.2d at 172; Campbell, 910 S.W.2d at 477.
Generally, reversible error occurs in the giving of an abstract instruction only when the
instruction is an incorrect or misleading statement of a law that the jury must understand in order
to implement the commands of the application paragraph. Crenshaw, 378 S.W.3d at 466; Plata,
926 S.W.2d at 302.
The jury is presumed to have understood and followed the court’s charge, absent
evidence to the contrary. Crenshaw, 378 S.W.3d at 467. In the instant case, the application
paragraph tracked the language of the indictment and properly directed the jury only to the acts
of sexual abuse authorized by the indictment. In determining whether the jury charge improperly
expanded on the allegations in the indictment, and in conducting a harm analysis, the proper
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focus is on the language in the application paragraph. Yzaguirre v. State, 394 S.W.3d 526, 530
(Tex. Crim. App. 2013). “Where the application paragraph correctly instructs the jury, an error
in the abstract instruction is not egregious.” Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim.
App. 1999). Thus, we conclude appellant did not suffer egregious harm. Appellant’s second
issue is overruled.
III. Sufficiency of the Evidence
In his third issue, appellant argues the evidence is insufficient to support his conviction
for aggravated sexual assault of a child.
We review the sufficiency of the evidence of a criminal offense by viewing the evidence
in the light most favorable to the verdict and determine whether any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt. Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007); see also Jackson v. Virginia, 443 U.S. 307 (1979);
Acosta v. State, 429 S.W.3d 621, 624–25 (Tex. Crim. App. 2014). The factfinder has the duty to
resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from
basic facts to ultimate facts. Clayton, 235 S.W.3d at 778. As a result, we determine whether the
necessary inferences are reasonable based upon the combined and cumulative force of all the
evidence when viewed in the light most favorable to the verdict. Id. When the record supports
conflicting inferences, we presume the factfinder resolved the conflicts in favor of the verdict
and defer to that determination. Id. Direct and circumstantial evidence are treated equally;
circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt. Id.
As we summarized earlier, the record in this case shows that the complainant described
multiple instances of sexual abuse that support appellant’s conviction for aggravated sexual
assault of a child. The child victim’s testimony alone is sufficient to support a conviction for
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aggravated sexual assault of a child or indecency with a child. TEX. CODE CRIM. PROC. ANN. art.
38.07; Revels v. State, 334 S.W.3d 46, 52 (Tex. App.––Dallas 2008, no pet.); Abbott v. State, 196
S.W.3d 334, 341 (Tex. App.––Waco 2006, pet. ref’d); Tear v. State, 74 S.W.3d 555, 560 (Tex.
App.––Dallas 2002, pet. ref’d); see also Cantu v. State, 366 S.W.3d 771, 775 (Tex. App.––
Amarillo 2012, no pet.). It was the jury’s role, as the finder of fact, to make credibility
determinations and reconcile conflicts in the evidence. Viewing the evidence under the proper
standard, we conclude a rational trier of fact could find beyond a reasonable doubt that appellant
committed aggravated sexual assault of a child. Hence, the evidence is sufficient to sustain the
conviction. We overrule appellant’s third issue.
We affirm the trial court’s judgment.
/Lana Myers/
LANA MYERS
JUSTICE
Do Not Publish
TEX. R. APP. 47
151166F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOSE BLANCO-LAZO, Appellant On Appeal from the Criminal District Court
No. 3, Dallas County, Texas
No. 05-15-01166-CR V. Trial Court Cause No. F14-34222-J.
Opinion delivered by Justice Myers. Justices
THE STATE OF TEXAS, Appellee Lang and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 27th day of December, 2016.
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