Otoniel Guzman v. State ( 2019 )

Opinion issued November 26, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00442-CR
———————————
OTONIEL GUZMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 432nd District Court
Tarrant County, Texas
Trial Court Case No. 1540453R
OPINION
A jury convicted appellant, Otoniel Guzman, of the first-degree felony offense
of continuous sexual abuse of a young child and assessed his punishment at thirty
years’ confinement.1 In six issues, appellant contends that the trial court erred by
(1) allowing the testimony of the complainant’s grandmother as an outcry witness;
(2) overruling his motion for mistrial after the complainant’s grandmother
commented on his right to remain silent; (3) denying his request for a writ of
attachment for a prospective juror who did not appear for voir dire; (4) allowing him
to be tried under a statute that is unconstitutional because it does not require an
unanimous jury to convict a defendant for the offense of continuous sexual abuse;
and (5) and (6) refusing his requested jury instruction on the lesser-included offenses
of indecency with a child by exposure and indecent exposure.
We affirm.
Background
Appellant and Ninfa Castillo were married. Castillo has three adult daughters
from a previous marriage, and her oldest daughter has three children including
Jessica,2 the complainant, who was born in March 2001, and Jessica’s two younger
brothers. Castillo and appellant obtained custody of Jessica and her siblings when
Jessica was around six years old. Castillo, appellant, Jessica, and her younger
1
See TEX. PENAL CODE ANN. § 21.02(b).
2
In this opinion, we use the pseudonym “Jessica” for the complainant to protect her
privacy.
2
brothers all lived together in a mobile home in Arlington, Texas.3 Jessica had her
own bedroom. She was seventeen years old at the time of trial.
Appellant is not biologically related to Jessica or her brothers. Castillo
testified that appellant favored Jessica over her brothers and that he would take her
shopping and buy her things, but he would not do so for her brothers. According to
Castillo, appellant would spoil Jessica, including buying her expensive phones and
giving her significantly more money at Christmas than he would give to her brothers.
Appellant would allow Jessica’s brothers to spend the night with friends, but he
would rarely let Jessica do so with her friends. During summer vacations, Jessica
and her brothers would spend around two months in San Antonio with their father’s
sister. Castillo testified that appellant did not mind Jessica’s brothers being away
from home for that length of time, but he did not want Jessica to be gone for so long,
and he would offer to drive to San Antonio to bring her home. Castillo stated that
she spoke with appellant about his preferential treatment of Jessica, but appellant
denied that anything untoward was happening with Jessica. Castillo had no
indication that an inappropriate relationship existed between appellant and Jessica.
3
The Texas Supreme Court transferred this appeal from the Court of Appeals for the
Second District of Texas to this Court pursuant to its docket-equalization authority.
See TEX. GOV’T CODE ANN. § 73.001 (“The supreme court may order cases
transferred from one court of appeals to another at any time that, in the opinion of
the supreme court, there is good cause for the transfer.”).
3
Appellant and Castillo had different work schedules. Appellant worked in
construction and was frequently out of town on various jobs. When he was in
Arlington, he typically worked from around 7:00 a.m. until 5:30 p.m. Castillo,
meanwhile, worked the night shift at PolyAmerica and typically worked from 5:30
p.m. until 5:30 a.m., six days per week. Appellant would supervise the children while
Castillo was at work.
On September 27, 2015, Castillo arrived home from work around 6:00 a.m.
Appellant was asleep in their bedroom, and she was surprised to see him because he
had been working out of town and was not supposed to be home until the following
weekend. Castillo went to sleep on the living room sofa and woke up around 10:00
a.m. She saw appellant leave the house, and she went back to sleep. She called
appellant about an hour later, and appellant said that he was not coming home
anymore. He told Castillo, “I’m not returning home before you lock me up.” Castillo
did not know what appellant meant by this, and appellant refused to explain.
While Castillo was still sitting on the sofa, Jessica walked into the living room,
crying. When Castillo asked her why she was crying, Jessica told her that appellant
had tried to touch her vagina and her breasts the previous evening. Jessica told
Castillo that this happened in her bedroom while Castillo was at work. She tried to
kick appellant away and she was screaming, and appellant left her bedroom but later
came back and “tried to do it again.” Castillo testified that this allegation surprised
4
her, and she asked Jessica what she wanted to do. Jessica responded that she wanted
to file charges, and Castillo took her to the Arlington Police Department.
Castillo testified that, after this incident, appellant no longer lived with her
and the children. Instead, he lived at an address in Alvarado, Texas. Castillo
informed the police of this address, but appellant was not arrested until January
2017, more than fifteen months after Jessica’s outcry. Castillo occasionally saw
appellant after the incident, usually at convenience stores where appellant would
give Castillo money to help with bills, and she did at one point invite him back to
their home in Arlington. Castillo stated that she invited appellant to the house “to
give him a chance to explain what had happened, what he did to my granddaughter.”
She stated, “He never say [sic] anything to me—” and defense counsel objected,
arguing that this testimony improperly commented on appellant’s right to remain
silent. The trial court instructed the jury to disregard Castillo’s statement, but it
denied defense counsel’s request for a mistrial.
Jessica testified that appellant began touching her inappropriately when she
was in fifth grade, around 2011 or 2012. Appellant would come into her bedroom
while she was asleep—and while Castillo was at work—and touch her breasts and
her vagina with his fingers. This happened around two or three times per week during
the weeks appellant was working in Arlington, and this went on for around five
years. Jessica also testified that appellant would put his mouth on her vagina and he
5
would make her touch his penis with her hand. When Jessica was in seventh grade,
he made her watch pornography on his phone, but this was the only occasion that he
did this.
With respect to the incident on September 26 and 27, 2015, which occurred
when she was fourteen years old, Jessica testified that appellant “came into [her]
room, did the same things as he would any other night.” On request by the State, she
clarified:
Doing things with my vagina, my breasts, using his mouth. And that
night—I got tired of it that night. I was trying to pull away, and I started
to wake up, and I guess he noticed that I started crying. He walked
away.
Appellant came back into her bedroom that evening, but Jessica pretended to be
asleep, and he did not do anything more to her. She further testified, “I really had
never cried any of the other nights, and when I cried this night, that’s what made me
feel like it just needs to stop already.” She stated that she was scared to tell anyone
about the abuse because she knew that appellant helped her family financially and
“was a big part of our lives.” Jessica decided to tell Castillo what had been
happening, but she did not give Castillo many details.
Jessica testified that she and her family continued to see appellant after she
reported the abuse to the police, stating, “I was okay with [seeing him] because I
was used to facing everything throughout the years.” She stated that she still loved
6
him and still wanted to see him “[b]ecause I knew he was my grandpa no matter
through all the things.”
On cross-examination, Jessica had the following exchange with defense
counsel:
Q: You told [Castillo] that [appellant] touched you on your private
parts; is that correct?
A: Yes.
Q: Back on September 27th?
A: Yes.
Q: And that he exposed himself; is that correct?
A: No.
Q: He would have had to expose himself if—would that be correct?
A: Can you—
Q: In doing some of these things back on September 27th?
A: Can you say that again? I’m sorry.
Q: He would have had to expose himself, wouldn’t he, to do some
of these things back on September 27th?
A: Yes.
Alexis Chase, a forensic interviewer with Alliance for Children, conducted
Jessica’s forensic interview on October 12, 2015. Chase served as an outcry witness
for all instances of abuse that Jessica disclosed, with the exception of the events of
September 26 and 27, 2015, for which Castillo served as the outcry witness. Chase
described Jessica as quiet, hesitant, and emotional during the interview. Jessica told
7
Chase that her grandfather—appellant—began touching her vagina with his fingers
when she was in fifth grade, and this continued approximately twice per week until
she was fourteen years old. Jessica told Chase that the abuse would occur at night,
in her bedroom, and she would be lying on her bed. Chase testified that Jessica
disclosed other acts of sexual abuse that appellant would perform on her, including
touching her breasts, putting his mouth on her vagina, and making her touch his
penis with her hand. Jessica told Chase that all of these actions occurred more than
one time.4
Appellant testified on his own behalf. He denied ever touching Jessica
inappropriately. Appellant testified that, on the morning of September 27, 2015, he
had a heated argument with Castillo after she refused to allow appellant to take the
children to Oklahoma with a friend and his family, and he expressed his intention to
seek a divorce from Castillo. After Castillo attempted to escalate the argument into
a physical fight, appellant left the house without any of his clothes or other
belongings. He stated that he learned of Jessica’s allegations against him
approximately one week later and that the allegations shocked him. He testified that,
after the allegations, when he began living in Alvarado, Castillo, Jessica, and
4
Theresa Fugate, a sexual assault nurse examiner, conducted a medical examination
of Jessica on October 19, 2015. She testified concerning statements that Jessica
made to her during the course of the exam. Fugate’s testimony was consistent with
Chase’s testimony concerning statements Jessica made during her forensic
interview.
8
Jessica’s younger brothers visited him there about four times. Jessica, and all of the
other family members, “acted all the same,” and he did not notice any difference in
their behavior compared to before the allegations. Appellant also testified that, over
the years, he had several disagreements with Jessica, including over phone and tablet
usage, alleged misrepresentations Jessica made on social media concerning her age,
alleged out-of-state phone calls, alleged requests by Jessica to have a boyfriend come
live with them, and Jessica’s allegedly sneaking out of the house at night.
The indictment against appellant alleged six counts.5 The first count, for
continuing sexual abuse of a young child, alleged:
That Otoniel Guzman, hereinafter called Defendant, in the County of
Tarrant, State of Texas, on or about the 1st day of September 2011
through the 5th day of March 2015, during a period of time that is 30
days or more in duration, did commit two or more acts of sexual abuse,
namely: aggravated sexual assault of a child under 14: by causing the
finger of the defendant to penetrate the sexual organ of [Jessica], and/or
by causing the mouth of the defendant to contact the sexual organ of
[Jessica], and/or indecency with a child: by causing [Jessica] to contact
any part of the genitals of the defendant, and/or by causing the hand of
the defendant to contact any part of the genitals of [Jessica], and at the
time of the commission of each of these acts of sexual abuse the
defendant was 17 years of age or older and [Jessica] was younger than
14 years of age.
Counts two through five of the indictment—two counts of aggravated sexual assault
of a child and two counts of indecency with a child by contact—alleged each specific
5
Count six alleged indecency with a child by touching Jessica’s breast. The State
waived this count prior to the beginning of testimony.
9
act of sexual abuse mentioned in count one of the indictment as a separate charge.
The indictment alleged that counts two through five occurred “on or about”
September 1, 2011.
At the charge conference, defense counsel requested that the trial court
instruct the jury on two lesser-included offenses: indecency with a child by exposure
and indecent exposure. The trial court denied this request. The jury charge submitted
count one—continuous sexual abuse of a young child—to the jury and counts two
through five as lesser-included offenses, instructing the jury to consider those counts
only if it did not reach a verdict on count one. The jury found appellant guilty of
continuous sexual abuse of a young child and assessed his punishment at thirty
years’ confinement. This appeal followed.
Outcry Witness Testimony
In his first issue, appellant contends that the trial court erred by allowing
Castillo to testify as an outcry witness and, as a result, her testimony concerning
what Jessica had told her about the abuse constituted inadmissible hearsay.
A. Standard of Review and Governing Law
Hearsay is an out-of-court statement that a party offers in evidence to prove
the truth of the matter asserted in the statement. TEX. R. EVID. 801(d). Generally,
hearsay is not admissible unless provided for by the Rules of Evidence, a statute, or
other rule. TEX. R. EVID. 802.
10
One recognized exception to the general prohibition against hearsay allows,
in the prosecution for certain sexual abuse cases involving children, the admission
of the child’s out-of-court statement concerning the abuse made to an outcry witness.
See Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011). Under Code of
Criminal Procedure article 38.072, a child complainant’s out-of-court statement is
admissible if it describes the alleged offense, was made by the child against whom
the charged offense was allegedly committed, and was made to the first person,
eighteen years of age or older, other than the defendant, to whom the child made a
statement about the offense. TEX. CODE CRIM. PROC. ANN. art. 38.072(a); Sanchez,
354 S.W.3d at 484. The child’s statement “must be ‘more than words which give a
general allusion that something in the area of child abuse is going on’; it must be
made in some discernable manner and is event-specific rather than person-specific.”
Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011) (quoting Garcia v.
State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990)). Hearsay testimony from more
than one outcry witness may be admissible under article 38.072 “only if the
witnesses testify about different events.” Id.
Article 38.072 also includes procedural requirements, including that the party
intending to offer the statement must, on or before the fourteenth day before trial
begins, notify the adverse party of its intention to offer the statement, provide the
name of the outcry witness, and provide a written summary of the statement. TEX.
11
CODE CRIM. PROC. ANN. art. 38.072(b)(1); Sanchez, 354 S.W.3d at 484. Outside the
presence of the jury, the trial court must conduct a hearing and find that the statement
is reliable “based on the time, content, and circumstances of the statement.” TEX.
CODE CRIM. PROC. ANN. art. 38.072(b)(2); Sanchez, 354 S.W.3d at 484–85, 488
(“The only task [article 38.072] assigns the trial court is to determine whether, based
on the time, content, and circumstances of the statement, the outcry is reliable.”).
The child complainant must testify or be available to testify at the proceeding in
court. TEX. CODE CRIM. PROC. ANN. art. 38.072(b)(3); Sanchez, 354 S.W.3d at 485.
The trial court has broad discretion to determine which of several witnesses is
an outcry witness, and we will not disturb this decision absent a clear abuse of
discretion. Chapman v. State, 150 S.W.3d 809, 813 (Tex. App.—Houston [14th
Dist.] 2004, pet. ref’d). A trial court abuses its discretion when its decision is outside
the zone of reasonable disagreement. Id.
B. Analysis
Appellant argues that Castillo was not a proper outcry witness because, during
the outcry-witness hearing outside the presence of the jury, Castillo testified only
that Jessica had told her that appellant touched her leg and tried to pull her closer to
him—actions that do not constitute a criminal offense—but during trial Castillo
improperly expanded her testimony and testified that Jessica told her that appellant
touched her breasts.
12
At the outcry-witness hearing, Castillo testified that she works the night shift
and that, on the morning of September 27, 2015, she arrived at the home she shared
with appellant, Jessica, and Jessica’s two younger brothers, around 5:30 or 6:00 a.m.
Appellant was asleep in their bedroom, and Castillo decided to sleep on the sofa in
the living room. When Castillo woke up around 10:00 a.m., she noticed appellant
had left the house, and she called him and asked where he was. Appellant told her
that he was not coming home, and he stated, “I’m not coming home before you lock
me up.” Castillo did not understand what appellant was referring to with this
statement.
Shortly thereafter, Jessica woke up and came into the living room to talk to
Castillo. Jessica was crying, and she told Castillo that appellant had gone into her
bedroom that night and touched her inappropriately. Castillo testified that Jessica
told her that appellant “pushed—he grabbed [Jessica’s] leg, struggled, you know,
because she was in the corner and she was pulling her leg close to the bed.” Jessica
told Castillo that appellant came into her bedroom twice that night: the first time she
struggled and was crying and kicking appellant, and then he came into her room a
second time after she had calmed down. Jessica also told Castillo that this was not
the first time that this had occurred. Jessica did not provide details to Castillo of
other times that appellant had touched her inappropriately, but she said it had
happened more than five times.
13
Defense counsel objected to Castillo’s testifying as an outcry witness,
pointing out that in Castillo’s testimony during the hearing, she “just makes
reference to the fact that the child says that her leg was pulled and that [appellant]
was pulling her leg,” and that Castillo did not testify concerning any specific details
about the incident that Jessica had told to her. Defense counsel argued that Jessica’s
statement to Castillo did not constitute an outcry “because it does not pertain to any
crime.”
The State then recalled Castillo and asked her if Jessica had specifically told
Castillo where appellant had touched her. Castillo responded, “On her private part.”
The State then refreshed Castillo’s recollection using a written statement Castillo
had made to the police a few weeks after Jessica made her outcry and Castillo
reported the abuse to police. Castillo then testified that Jessica told her that appellant
had touched her on her vagina and on her breasts.
The trial court ruled that Castillo was a proper outcry witness and could testify
concerning what Jessica told her on the morning of September 27, namely, that the
previous night appellant had touched Jessica’s vagina and breasts. The trial court
agreed with the State that Jessica’s outcry was credible and reliable. The trial court
also agreed with the State that because Jessica did not tell Castillo details about other
times she had been abused by appellant, Castillo was not a proper outcry witness
14
with respect to those incidents.6 Castillo’s trial testimony was consistent with the
facts to which she had testified during the course of the outcry-witness hearing.
The trial court had evidence before it that Castillo was the first person over
the age of eighteen whom Jessica told about appellant’s inappropriate actions that
occurred on September 26 and 27, 2015. Castillo’s testimony at the outcry-witness
hearing reflected that Jessica told her that, in addition to grabbing her leg, appellant
also touched her on her vagina and her breasts that night. We conclude that the trial
court did not abuse its discretion in allowing Castillo to testify as an outcry witness
concerning the incident of abuse on September 26 and 27. See TEX. CODE CRIM.
PROC. ANN. art. 38.072(a)–(b); Martinez v. State, 178 S.W.3d 806, 811 (Tex. Crim.
App. 2005) (“[The outcry] witness may recite the child’s out-of-court statements
concerning the offense, and that testimony is substantive evidence of the crime.”).
Appellant also contends that Castillo’s testimony concerning what Jessica told
her on September 27 violates the Confrontation Clause. The Confrontation Clause
“prohibits the admission of a testimonial statement of a declarant who does not
testify at trial, unless the declarant is unavailable to testify and the defendant had a
prior opportunity to cross-examine the declarant.” Torres v. State, 424 S.W.3d 245,
259 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). When, however, “the
6
Alexis Chase, who conducted Jessica’s forensic interview, served as the outcry
witness for the other incidents of abuse. Appellant makes no complaint on appeal
concerning the propriety of Chase as an outcry witness for these incidents.
15
declarant appears for cross-examination at trial, the Confrontation Clause places no
constraints at all on the use of his prior testimonial statements. . . . The Clause does
not bar admission of a statement so long as the declarant is present at trial to defend
or explain it.” Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004); Crawford v.
State, 139 S.W.3d 462, 464–65 (Tex. App.—Dallas 2004, pet. ref’d) (concluding
that Confrontation Clause did not bar outcry witness’s testimony concerning out-of-
court statement by child declarant because complainant testified at trial and therefore
defendant had opportunity to cross-examine complainant); see also Eustis v. State,
191 S.W.3d 879, 886 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (holding,
in aggravated assault case, that admission of unsigned transcription of complainant’s
oral statement did not violate Confrontation Clause because complainant testified at
trial and defendant had opportunity to cross-examine her).
In this case, both Castillo and Jessica testified at trial. Appellant was able to,
and did, cross-examine both of them about the events that occurred on September
26 and 27, as well as Jessica’s outcry statement to Castillo concerning the abuse.
Because Jessica, the declarant of the out-of-court outcry statement, testified at trial
and was subject to cross-examination by appellant, admission of her outcry
statement through Castillo did not violate appellant’s rights under the Confrontation
16
Clause.7 See Crawford, 541 U.S. at 59 n.9; Eustis, 191 S.W.3d at 886; Crawford,
139 S.W.3d at 464–65; see also Rojas v. State, No. 02-15-00144-CR, 2016 WL
6648748, at *5–6 (Tex. App.—Fort Worth Nov. 10, 2016, pet. ref’d) (mem. op., not
designated for publication) (holding that forensic nurse examiner could testify
concerning her diagnosis of child complainant as victim of sexual abuse which was
based in part on complainant’s out-of-court statements made during examination and
that this testimony did not violate Confrontation Clause because child declarant
testified at trial and was subject to cross-examination).
We overrule appellant’s first issue.
Witness’s Testimony Concerning Right to Remain Silent
In his second issue, appellant contends that the trial court erroneously denied
his motion for mistrial, made after Castillo testified that after Jessica’s outcry
7
To the extent appellant complains that he was denied his rights under the
Confrontation Clause to cross-examine either Castillo or Jessica concerning any
biases they had against him or any motives to lie, appellant has presented no
argument on appeal concerning specific questions or topics that he was denied the
opportunity to ask. See Johnson v. State, 490 S.W.3d 895, 909–10 (Tex. Crim. App.
2016) (noting that “main purpose” behind Confrontation Clause “is to secure for the
opposing party the opportunity of cross-examination” and that right of cross-
examination “allows a party to attack the general credibility of that witness ‘or to
show their possible bias, self-interest, or motives in testifying,’” but right of cross-
examination is “not unqualified” and trial courts “retain wide latitude” to limit scope
and extent of cross-examination as long as limits do not infringe upon Confrontation
Clause’s guarantee of “an opportunity for effective cross-examination”). Because
appellant has presented no specific arguments on this complaint, we conclude that
he has failed to adequately brief this complaint. See TEX. R. APP. P. 38.1(i) (“The
brief must contain a clear and concise argument for the contentions made, with
appropriate citations to authorities and to the record.”).
17
appellant refused to answer Castillo’s question concerning what had happened with
Jessica. Specifically, appellant argues that Castillo’s testimony improperly
commented on his right to remain silent.
A mistrial is the appropriate remedy when the objectionable event is “so
emotionally inflammatory that curative instructions are not likely to prevent the jury
from being unfairly prejudiced against the defendant.” Archie v. State, 340 S.W.3d
734, 739 (Tex. Crim. App. 2011) (quoting Young v. State, 137 S.W.3d 65, 71 (Tex.
Crim. App. 2004)); Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)
(“A mistrial is the trial court’s remedy for improper conduct that is ‘so prejudicial
that expenditure of further time and expense would be wasteful and futile.’”)
(quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). We determine
whether an error requires a mistrial based on the particular facts of the case. Ocon v.
State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). “Only in extreme
circumstances, where the prejudice is incurable, will a mistrial be required.”
Hawkins, 135 S.W.3d at 77. We review a trial court’s refusal to grant a motion for
mistrial for an abuse of discretion. Archie, 340 S.W.3d at 738–39.
The Fifth Amendment of the United States Constitution “guarantees an
accused the right to remain silent during his criminal trial and prevents the
prosecution [from] commenting on the silence of a defendant who asserts the right.”
Jenkins v. Anderson, 447 U.S. 231, 235 (1980); Salinas v. State, 369 S.W.3d 176,
18
177–78 (Tex. Crim. App. 2012) (noting that Fifth Amendment states that no person
“shall be compelled in any criminal case to be a witness against himself” and that
Supreme Court has “interpreted this as prohibiting the State from commenting on a
defendant’s refusal to testify at trial”). “A defendant’s silence before trial, however,
is considerably less protected from being commented upon at trial.” Salinas, 369
S.W.3d at 178. The Supreme Court has held that no Fifth Amendment violation
occurs when a defendant testifies at trial and the State impeaches the defendant with
his prior silence. Jenkins, 447 U.S. at 235. A criminal defendant has immunity from
giving testimony, but a defendant may waive this immunity and choose to testify.
Id. (quoting Raffel v. United States, 271 U.S. 494, 496–97 (1926)). When a defendant
“takes the stand in his own behalf, he does so as any other witness, and within the
limits of the appropriate rules he may be cross-examined,” such that a defendant who
testifies is “subject to cross-examination impeaching his credibility just like any
other witness.” Id. at 235–36. The Supreme Court thus concluded that “the Fifth
Amendment is not violated by the use of prearrest silence to impeach a criminal
defendant’s credibility.” Id. at 238; Salinas, 369 S.W.3d at 178 (“[T]he Supreme
Court has held that pre-arrest, pre-Miranda silence can be used to impeach a
defendant who testifies.”).
In Salinas, the Court of Criminal Appeals addressed a question left open by
the United States Supreme Court: whether pre-arrest, pre-Miranda silence is
19
admissible against a non-testifying defendant. See 369 S.W.3d at 178. The court
noted that the plain language of the Firth Amendment “protects a defendant from
compelled self-incrimination.” Id. at 179. In a pre-arrest, pre-Miranda situation, a
suspect’s interactions with police officers are not compelled. Id. “Thus, the Fifth
Amendment right against compulsory self-incrimination is ‘simply irrelevant to a
citizen’s decision to remain silent when he is under no official compulsion to
speak.’” Id. (quoting Jenkins, 447 U.S. at 241 (Stevens, J., concurring)). The Court
of Criminal Appeals ultimately held that “pre-arrest, pre-Miranda silence is not
protected by the Fifth Amendment right against compelled self-incrimination, and
that prosecutors may comment on such silence regardless of whether a defendant
testifies.” Id.; see also Waldo v. State, 746 S.W.2d 750, 755 (Tex. Crim. App. 1988)
(“Prearrest silence is a constitutionally permissible area of inquiry.”); Buentello v.
State, 512 S.W.3d 508, 521 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d)
(holding that trial court did not err in refusing to grant motion for mistrial made in
response to State’s questioning of police investigator concerning whether, in early
stages of his investigation before defendant had been charged, defendant ever agreed
to give statement because, at that point in time, defendant had not been arrested or
read his Miranda warnings and therefore defendant’s silence was not protected by
Fifth Amendment right against compelled self-incrimination and was permissible
area of inquiry for State at trial).
20
In this case, it is undisputed that Jessica made her complaint to police officers
in September 2015 and that appellant was not arrested for the underlying offense
until January 2017. Castillo testified concerning the contact that she had with
appellant after Jessica made her outcry and after she made the initial report to police.
Castillo testified that she occasionally met with appellant at convenience stores,
primarily to obtain money from appellant to pay the family’s bills and that, at one
point, she had invited him to the house where they had lived before the incident and
asked him to stay. The State asked Castillo why she had invited appellant to their
house after Jessica’s allegations. Castillo responded: “We were just him and me. I
was trying to give him a chance to explain what had happened, what he did to my
granddaughter. He never say [sic] anything to me—” At this point, defense counsel
objected, arguing that Castillo’s testimony was “a direct comment on [appellant’s]
remaining silent in the face of an allegation,” that the testimony was highly
prejudicial, and that the testimony was “a comment on his right to remain silent” that
violated appellant’s Fifth Amendment rights. Defense counsel moved for a mistrial.
The trial court denied counsel’s request for a mistrial, but instructed the jury to
disregard Castillo’s comment. Appellant later testified on his own behalf.
Castillo’s testimony concerned a conversation that she had with appellant
regarding the allegations before appellant was arrested. Appellant’s interaction with
Castillo was not “compelled,” and he was under no “official compulsion” to speak
21
and answer her questions. See Salinas, 369 S.W.3d at 179. Because this conversation
with Castillo occurred prior to appellant’s arrest and his being read his Miranda
warnings, his silence during this conversation does not implicate, and is not
protected by, the Fifth Amendment’s right against compelled self-incrimination. Id.
We therefore hold that, because Castillo’s testimony was admissible, the trial court
did not abuse its discretion by refusing to grant appellant’s request for a mistrial. See
Buentello, 512 S.W.3d at 521.
We overrule appellant’s second issue.
Writ of Attachment for Prospective Juror
In his third issue, appellant complains that the trial court erred by denying his
request for a writ of attachment to secure the presence of a veniremember who did
not show up for voir dire because she was in Las Vegas at the time trial started.
Code of Criminal Procedure article 35.01 provides:
When a case is called for trial and the parties have announced ready for
trial, the names of those summoned as jurors in the case shall be called.
Those not present may be fined not less than $100 nor more than $500.
An attachment may issue on request of either party for any absent
summoned juror, to have him brought forthwith before the court. A
person who is summoned but not present, may upon an appearance,
before the jury is qualified, be tried as to his qualifications and
impaneled as a juror unless challenged, but no cause shall be
unreasonably delayed on account of his absence.
TEX. CODE CRIM. PROC. ANN. art. 35.01. This statute “is directory and not
mandatory.” Porter v. State, 623 S.W.2d 374, 377 (Tex. Crim. App. 1981). “[I]n the
22
absence of governmental misconduct in summoning the venire, the failure to grant
attachments [for absent veniremembers] is not reversible error unless [the defendant]
shows injury.” Dowthitt v. State, 931 S.W.2d 244, 251 (Tex. Crim. App. 1996);
Jackson v. State, 745 S.W.2d 4, 17 (Tex. Crim. App. 1988). To make a showing of
injury, the defendant must demonstrate that he was forced to accept an
“objectionable juror,” that is, “one against whom such cause for challenge exists as
would likely affect [the juror’s] competency or his impartiality in the trial.” Jones v.
State, 119 S.W.3d 766, 785 (Tex. Crim. App. 2003) (quoting Stephenson v. State,
494 S.W.2d 900, 904 (Tex. Crim. App. 1973)). We review a trial court’s refusal to
issue a writ of attachment for a prospective juror who does not appear for voir dire
for an abuse of discretion. See Jackson, 745 S.W.2d at 17; Porter, 623 S.W.2d at
377.
Here, before voir dire began, the trial court and the parties discussed an issue
concerning a veniremember. One of the prospective jurors had informed the trial
court that she was in Las Vegas and that she would not be present for jury selection.
The State had no objection to the trial court’s suggestion that this veniremember be
excused. Defense counsel, however, did object, arguing that this veniremember “was
duly served to be here, and she chose voluntarily to leave” and that proceeding in
the absence of this veniremember violated appellant’s due process rights and his
right to have a fair jury. Defense counsel requested that the trial court issue a writ of
23
attachment and not proceed with jury selection until this veniremember was present.
The trial court denied this request. The trial court proposed adding another person to
the venire, to take the place of the absent veniremember, if appellant so desired.
Defense counsel objected to this proposal, arguing that appellant had “a right to have
the panel that was actually . . . brought to the Court, at least served to be here.” The
parties then proceeded to conduct voir dire. At the end of voir dire, defense counsel
did not make any further objection concerning the absent veniremember, nor did
defense counsel identify an objectionable juror or object to the seating of the jury.
We conclude that the record does not demonstrate that appellant suffered an
injury resulting from the trial court’s refusal to issue a writ of attachment for the
absent veniremember. See Jones, 119 S.W.3d at 785 (holding that, to demonstrate
injury resulting from trial court’s failure to grant attachment, defendant must
demonstrate that he was forced to accept “objectionable juror,” or juror “against
whom such cause for challenge exists as would likely affect [the juror’s] competency
or his impartiality in the trial”); Dowthitt, 931 S.W.2d at 251 (holding that, in
absence of governmental misconduct in summoning venire, failure to grant
attachments is not reversible error unless defendant shows injury); Jackson, 745
S.W.2d at 17 (holding that burden is on defendant to establish that injury occurred
due to failure to grant attachment). We therefore hold that the trial court did not err
24
by refusing to grant appellant’s request to issue a writ of attachment for the absent
veniremember.
We overrule appellant’s third issue.
Jury Unanimity
In his fourth issue, appellant challenges the constitutionality of Penal Code
section 21.02, which criminalizes the offense of continuous sexual abuse of a young
child, because the statute does not require the jury to be unanimous regarding the
specific acts of sexual abuse committed by a defendant.
The constitutionality of a statute is a question of law that we review de novo.
Vandyke v. State, 538 S.W.3d 561, 570 (Tex. Crim. App. 2017); Ex parte Lo, 424
S.W.3d 10, 14 (Tex. Crim. App. 2013). When a person attacks the constitutionality
of a statute, we begin with the presumption that the statute is valid and that the
legislature did not act unreasonably or arbitrarily in enacting it. Vandyke, 538
S.W.3d at 570; Lo, 424 S.W.3d at 14–15. Generally, the burden rests on the party
challenging the statute to establish that it is unconstitutional. Vandyke, 538 S.W.3d
at 570–71; Lo, 424 S.W.3d at 15.
Penal Code section 21.02 provides that a person commits an offense if:
(1) during a period that is 30 or more days in duration, the person
commits two or more acts of sexual abuse, regardless of whether
the acts of sexual abuse are committed against one or more
victims; and
25
(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, regardless of whether the actor
knows the age of the victim at the time of the offense.
TEX. PENAL CODE ANN. § 21.02(b). Section 21.02(c) defines “act of sexual abuse”
to mean any act that violates one or more of eight different sections of the Penal
Code, including sexual assault, aggravated sexual assault, and certain acts of
indecency with a child. Id. § 21.02(c); Price v. State, 434 S.W.3d 601, 606 (Tex.
Crim. App. 2014) (“The ‘acts of sexual abuse’ are specifically enumerated and are
lesser-included offenses of the offense of continuous sexual abuse.”). Section
21.02(d) states:
If a jury is the trier of fact, members of the jury are not required to agree
unanimously on which specific acts of sexual abuse were committed by
the defendant or the exact date when those acts were committed. The
jury must agree unanimously that the defendant, during a period that is
30 or more days in duration, committed two or more acts of sexual
abuse.
TEX. PENAL CODE ANN. § 21.02(d).
“Texas law requires that a jury reach a unanimous verdict about the specific
crime that the defendant committed.” Cosio v. State, 353 S.W.3d 766, 771 (Tex.
Crim. App. 2011); Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005)
(“Under our state constitution, jury unanimity is required in felony cases, and, under
our state statutes, unanimity is required in all criminal cases.”). The jury “must agree
that the defendant committed one specific crime,” but this does not mean that “the
26
jury must unanimously find that the defendant committed that crime in one specific
way or even with one specific act.” Landrian v. State, 268 S.W.3d 532, 535 (Tex.
Crim. App. 2008); Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004)
(“The unanimity requirement is not violated by instructing the jury on alternative
theories of committing the same offense, in contrast to instructing the jury on two
separate offenses involving separate incidents.”). In both Texas and federal courts,
the jury must be unanimous in finding that the defendant committed a specific
statutory crime, “[b]ut it is the legislature, not the courts, that defines the forbidden
act, the required culpability, and the particular result, if any.” Landrian, 268 S.W.3d
at 536; see also Valdez v. State, 218 S.W.3d 82, 84 (Tex. Crim. App. 2007) (“[T]he
question of what a jury must be unanimous about in cases like this [involving jury
finding on enhancement paragraphs] is determined by the legislative intent of the
applicable statute.”).
Although the Court of Criminal Appeals has not specifically addressed
whether section 21.02 allows a defendant to be convicted on less than a unanimous
verdict as to the acts constituting the offense of continuous sexual abuse of a child,
and is therefore unconstitutional, multiple intermediate appellate courts, including
the Fort Worth Court of Appeals, whose law we are bound to follow in this transfer
27
case,8 have held that section 21.02 does not violate a defendant’s constitutional right
to a unanimous jury verdict.
In Jacobsen v. State, the Austin Court of Appeals was the first court to address
whether section 21.02 violates the jury unanimity requirement. The court noted that
jurors “must unanimously agree on each element of the crime in order to convict,
but the jurors need not agree on all the underlying facts that make up a particular
element.” Jacobsen v. State, 325 S.W.3d 733, 736 (Tex. App.—Austin 2010, no
pet.). The court focused on the specific language of section 21.02 as a whole, stating
that, under that section, “it is the commission of two or more acts of sexual abuse
over the specified time period—that is, the pattern of behavior or the series of acts—
that is the actus reus element of the offense as to which the jurors must be unanimous
in order to convict.” Id. at 737. The individual acts of sexual abuse that make up the
pattern of behavior—that is, the eight offenses listed in section 21.02(c) that serve
8
See TEX. R. APP. P. 41.3 (providing that, in transfer cases, “the court of appeals to
which the case is transferred must decide the case in accordance with the precedent
of the transferor court under principles of stare decisis if the transferee court’s
decision otherwise would have been inconsistent with the precedent of the transferor
court”). This Court, like the Court of Criminal Appeals, has not specifically
addressed whether Penal Code section 21.02 is an unconstitutional violation of the
jury unanimity requirement, although we have followed the reasoning of cases from
our sister courts in the jury unanimity context in holding that, in charging an offense
for continuous sexual abuse, the State need not allege in the indictment the specific
manner and means by which the defendant allegedly committed the statutorily-
defined predicate offenses of continuous sexual abuse to provide constitutionally
sufficient notice of the offense. See Buxton v. State, 526 S.W.3d 666, 678–82 (Tex.
App.—Houston [1st Dist.] 2017, pet. ref’d).
28
as predicate offenses, such as sexual assault, aggravated sexual assault, and certain
indecency with a child offenses—“are not themselves elements of the offense [of
continuous sexual abuse], but are merely evidentiary facts, the manner and means
by which the actus reus element is committed.” Id. Ultimately, the Austin Court
concluded that section 21.02 does not violate a defendant’s due process rights “by
permitting a conviction based on a jury’s unanimous finding that the defendant
engaged in a course of conduct consisting of repeated acts of sexual abuse, but
without requiring jury unanimity as to the individual acts that made up the course of
conduct.” Id. at 739.
Other intermediate appellate courts have agreed with this analysis, holding
that “[t]he commission of two or more acts of sexual abuse over a specified time
period—that is, the pattern of behavior or the series of acts—is the element as to
which the jurors must be unanimous in order to convict,” and therefore section 21.02
“does not allow jurors to convict on the basis of different elements.” Pollock v. State,
405 S.W.3d 396, 405 (Tex. App.—Fort Worth 2013, no pet.); see, e.g., Carmichael
v. State, 505 S.W.3d 95, 106 (Tex. App.—San Antonio 2016, pet. ref’d); Holton v.
State, 487 S.W.3d 600, 605–08 (Tex. App.—El Paso 2015, no pet.); McMillian v.
State, 388 S.W.3d 866, 872–73 (Tex. App.—Houston [14th Dist.] 2012, no pet.);
Kennedy v. State, 385 S.W.3d 729, 731–32 (Tex. App.—Amarillo 2012, pet. ref’d);
Render v. State, 316 S.W.3d 846, 856–58 (Tex. App.—Dallas 2010, pet. ref’d).
29
Our sister courts have also held that because the alternate manner and means
of committing the offense of continuous sexual abuse—the predicate offenses
enumerated in section 21.02(c)—all involve the actual or intended sexual abuse of a
child, are all felonies, are all morally equivalent, and are all conceptually similar,
section 21.02 does not violate federal due process guarantees even though it allows
jurors to disagree on the manner and means of committing the offense of continuous
sexual abuse. See Casey v. State, 349 S.W.3d 825, 829–30 (Tex. App.—El Paso
2011, pet. ref’d); see, e.g., McMillian, 388 S.W.3d at 872–73; Jacobsen, 325 S.W.3d
at 739; cf. White v. State, 208 S.W.3d 467, 469 (Tex. Crim. App. 2006) (holding that
predicate felonies alleged in felony-murder case “constitute the manner or means
that make up the ‘felony’ element” of offense and jury unanimity is not required and
holding that “dispensing with jury unanimity on the felonies alleged in this case does
not violate due process because these felonies are ‘basically morally and
conceptually equivalent’”) (quoting Jefferson v. State, 189 S.W.3d 305, 313 (Tex.
Crim. App. 2006)).
We agree with the intermediate appellate courts that have addressed this issue
and hold that Penal Code section 21.02 does not violate the state and federal
guarantees of jury unanimity.
We overrule appellant’s fourth issue.
30
Lesser-Included Offense Instructions
Finally, in his fifth and sixth issues, appellant argues that the trial court erred
by refusing to instruct the jury on the lesser-included offenses of indecency with a
child by exposure and indecent exposure.
A. Governing Law
Code of Criminal Procedure article 37.09 pertains to lesser-included offenses
and provides that an offense is a lesser-included offense if:
(1) it is established by proof of the same or less than all the facts
required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less
serious injury or risk of injury to the same person, property, or
public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less
culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an
otherwise included offense.
TEX. CODE CRIM. PROC. ANN. art. 37.09.
Courts apply a two-step analysis to determine whether an instruction on a
lesser-included offense should be given to the jury. State v. Meru, 414 S.W.3d 159,
162 (Tex. Crim. App. 2013); Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim.
App. 2012). The first step of this analysis is a question of law that does not depend
on the evidence at trial and compares the elements of the offense as alleged in the
indictment with the elements of the requested lesser-included offense. Meru, 414
31
S.W.3d at 162; see Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007)
(holding that first step in lesser-included offense analysis must be “capable of being
performed before trial by comparing the elements of the offense as they are alleged
in the indictment or information with the elements of the potential lesser-included
offense”). The question at this step is, “[A]re the elements of the lesser offense
‘established by proof of the same or less than all the facts required to establish[] the
commission of the offense charged’?” Ex parte Watson, 306 S.W.3d 259, 264 (Tex.
Crim. App. 2009) (quoting TEX. CODE CRIM. PROC. ANN. art. 37.09(1)). Courts
compare the statutory elements and any “descriptive averments,” such as “non-
statutory manner and means[] that are alleged for purposes of providing notice,”
alleged in the indictment for the greater offense to the statutory elements of the lesser
offense. Id. at 273 (op. on reh’g) (per curiam).
If the analysis under the first step supports a conclusion that the defendant’s
requested lesser offense is a lesser-included offense, the court moves to the second
step of the analysis and considers whether a rational jury could find that, if the
defendant is guilty, he is guilty only of the lesser offense. Meru, 414 S.W.3d at 162–
63. This step is a factual determination that is based on the evidence presented at
trial. Id. at 163. If there is evidence that raises a fact issue on whether the defendant
is guilty only of the lesser offense, a lesser-included offense instruction is warranted,
“regardless of whether the evidence is weak, impeached, or contradicted.” Id.; Hall,
32
225 S.W.3d at 536 (“In this step of the analysis, anything more than a scintilla of
evidence may be sufficient to entitle a defendant to a lesser charge.”). The evidence
must establish the lesser offense as a “valid, rational alternative to the charged
offense.” Hall, 225 S.W.3d at 536 (quoting Forest v. State, 989 S.W.2d 365, 367
(Tex. Crim. App. 1999)). The evidence may be “weak or contradicted,” but it “must
still be directly germane to the lesser-included offense and must rise to a level that a
rational jury could find that if [the defendant] is guilty, he is guilty only of the lesser-
included offense.” Cavazos, 382 S.W.3d at 385. To meet this threshold, the evidence
must be more than mere speculation; this threshold “requires affirmative evidence
that both raises the lesser-included offense and rebuts or negates an element of the
greater offense.” Id.
B. Analysis
Appellant argues that the trial court erred by refusing to include jury
instructions on the lesser-included offenses of indecency with a child by exposure
and indecent exposure. He contends that the evidence establishes that he committed
the offenses of indecency with a child by exposure and indecent exposure because
defense counsel asked Jessica if, at the time of the last instance of abuse, appellant
“would have had to expose himself . . . to do some of these things back on September
27th,” and Jessica agreed.
33
The elements of continuous sexual abuse, as alleged in the indictment against
appellant, are:
(1) appellant;
(2) during a period of time that is 30 days or more in duration;
(3) committed two or more acts of sexual abuse, namely
(a) aggravated sexual assault of a child under the age of
fourteen by causing his finger to penetrate Jessica’s sexual
organ;
(b) aggravated sexual assault of a child under the age of
fourteen by causing his mouth to contact Jessica’s sexual
organ;
(c) indecency with a child by causing Jessica to contact any
part of his genitals; or
(d) indecency with a child by causing his hand to contact any
part of Jessica’s genitals; and
(4) at the time of the commission of each of these acts of sexual
abuse, appellant was seventeen years of age or older and Jessica
was younger than fourteen.
See TEX. PENAL CODE ANN. § 21.02.
A person commits the offense of indecency with a child by exposure if:
(1) with a child younger than seventeen years of age, and
(2) with intent to arouse or gratify the sexual desire of any person,
(3) the person exposes the person’s anus or any part of the person’s
genitals, knowing the child is present.
Id. § 21.11(a)(2)(A). A person commits the offense of indecent exposure if he
“exposes his anus or any part of his genitals with intent to arouse or gratify the sexual
34
desire of any person, and he is reckless about whether another is present who will be
offended or alarmed by his act.” See id. § 21.08(a).
Assuming, without deciding, that indecency with a child by exposure and
indecent exposure are lesser-included offenses of continuous sexual abuse, we
nevertheless disagree with appellant that he was entitled to instructions on these
lesser-included offenses. In the second step of the lesser-included offense analysis,
we must consider the evidence presented at trial and determine whether a rational
jury could find that, if the defendant is guilty, he is guilty only of the lesser offense.
See Meru, 414 S.W.3d at 162–63. There must be affirmative evidence in the record
that “both raises the lesser-included offense and rebuts or negates an element of the
greater offense.” See Cavazos, 382 S.W.3d at 385.
Appellant relies on the following exchange between defense counsel and
Jessica as evidence that he claims entitles him to the requested lesser-included
offense instructions:
Q: You told her [Castillo] that he [appellant] touched you on your
private parts; is that correct?
A: Yes.
Q: Back on September 27th?
A: Yes.
Q: And that he exposed himself; is that correct?
A: No.
Q: He would have had to expose himself if—would that be correct?
35
A: Can you—
Q: In doing some of these things back on September 27th?
A: Can you say that again? I’m sorry.
Q: He would have had to expose himself, wouldn’t he, to do some
of these things back on September 27th?
A: Yes.
Appellant argues that “[a]ll the acts are contained within each other” and that, for
the alleged improper contact to occur, he necessarily had to have exposed himself to
Jessica.
Although this testimony is evidence that appellant exposed himself to Jessica,
this testimony does not negate any element of the charged offense of continuous
sexual abuse. There is no testimony, for example, that appellant exposed himself to
Jessica on an isolated incident with no other form of sexual abuse occurring at that
time. Instead, the testimony is that he exposed himself in the course of committing
the charged acts of sexual abuse against Jessica. Cf. Aekins v. State, 447 S.W.3d 270,
277 n.28 (Tex. Crim. App. 2014) (“[O]ne rape will frequently involve the
defendant’s acts of exposing his genitals, then contacting the victim’s genitals with
his own, then penetrating the victim’s genitals with his. It is a ‘continuing’ crime in
the sense that the defendant commits several criminal acts on the way to completing
the rape, but the lesser acts of exposure and contact merge into the ultimate act of
penetration.”); Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004) (“The
36
record in this case does not show an occasion during the assaults when the exposure
was a separate offense. Under the facts of these incidents, exposure was incident to
and subsumed by the aggravated sexual assault.”). For a defendant to be entitled to
an instruction on a lesser-included offense, there must be affirmative evidence in the
record that “both raises the lesser-included offense and rebuts or negates an element
of the greater offense.” See Cavazos, 382 S.W.3d at 385. The record does not contain
any evidence that both raises a lesser-included offense and rebuts or negates an
element of the greater offense of continuous sexual abuse. We therefore conclude
that the trial court did not err by refusing appellant’s requested instructions on the
lesser-included offenses of indecency with a child by exposure and indecent
exposure.
We overrule appellant’s fifth and sixth issues.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Chief Justice Radack and Justices Keyes and Landau.
Publish. TEX. R. APP. P. 47.2(b).
37