Orlando Reyes Perez v. the State of Texas ( 2024 )

NUMBER 13-22-00292-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ORLANDO REYES PEREZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 206th District Court
of Hidalgo County, Texas.
OPINION
Before Chief Justice Contreras and Justices Benavides and Tijerina
Opinion by Justice Benavides
Appellant Orlando Reyes Perez was convicted by a jury of one count of continuous
sexual abuse of a young child and two counts of aggravated sexual assault of a child, all
first-degree felonies. See TEX. PENAL CODE ANN. §§ 21.02(b), 22.021(a)(1)(B). By six
issues, which we have reorganized, Perez complains that (1) the evidence was legally
insufficient to support his conviction for continuous sexual abuse, (2–4) the jury charge
contained several errors, (5) he was denied his right to effective assistance of counsel,
and (6) his convictions for aggravated sexual assault violated his double jeopardy rights.
The State concedes that Perez’s convictions for aggravated sexual assault were lesser
included offenses of his continuous sexual abuse conviction. We affirm the conviction for
continuous sexual abuse and vacate the other two convictions.
I. BACKGROUND
The indictment alleged that Perez, while seventeen years of age or older,
committed two or more acts of sexual abuse against Maria Garcia,1 a child younger than
fourteen years of age, during a period that was thirty or more days in duration. See id.
§ 21.02(b). The specific period of abuse alleged in the indictment was from on or about
September 15, 2017, through on or about December 1, 2018, and the acts of sexual
abuse alleged were aggravated sexual assault of a child and indecency with a child by
contact. By a separate count, the State alleged that, on or about October 27, 2018, Perez
committed aggravated sexual assault against a child by intentionally or knowingly causing
the sexual organ of Maria to contact Perez’s sexual organ. See id. § 22.021(a)(1)(B)(iii).
Finally, the State also alleged that, on or about January 1, 2019, Perez committed
aggravated sexual assault against a child by intentionally or knowingly causing the sexual
organ of Maria to contact Perez’s mouth.2 See id. Although Perez’s trial spanned several
1 To protect the complainant’s identity, we are using the pseudonym given to her in the indictment.
See TEX. CONST. art. 1, § 30(a)(1) (providing that a crime victim has “the right to be treated . . . with respect
for the victim’s dignity and privacy throughout the criminal justice process”). Out of an abundance of caution,
we will also use initials to identify her immediate family members.
2 The indictment included a fourth count that was abandoned by the State prior to trial.
2
days and included numerous witnesses, we highlight only the evidence that is necessary
to our disposition of Perez’s appeal.
Trial testimony established that Maria was born in 2011. Her mother, J.T., became
romantically involved with Perez in the summer of 2015. J.T. and Maria moved in with
Perez shortly after, and when the couple eventually married in 2017, Perez became
Maria’s stepfather. Maria’s biological father was not involved in her life, and Maria referred
to Perez as “dad.” J.T. and Perez had three daughters together: A.D.R., born June 25,
2016; A.L.R., born July 31, 2017; and A.A.R., born December 31, 2018. The family moved
to Hidalgo County in 2017, first living in an apartment complex for approximately a year
and then moving into a “purple house.” They resided at the house with Perez’s brother,
sister-in-law, and the couple’s baby. The two couples slept upstairs in separate
bedrooms, and Maria and her half-sisters shared a room downstairs but slept in separate
beds.
Maria made an initial outcry to her mother on March 27, 2019. According to J.T.,
the family had been living in the purple house for approximately six months at the time of
Maria’s outcry. J.T. and Perez began to argue, and when Perez left the room, Maria told
J.T. that Perez “touches [her] private and . . . kisses [her] on the mouth.” When Maria said
Perez was touching her “private,” J.T. understood this to mean that Perez was touching
Maria’s vagina. According to J.T., Perez walked backed into the room and after seeing
their expressions, he began acting “scared” because “he knew what was going on.”
J.T. then confronted Perez with Maria’s allegations, which he initially denied. J.T.
explained that Maria, who was only seven years old at the time, then accused Perez of
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“lying.” According to J.T., Perez then dropped to his knees and said, “Please forgive me;
I already asked for forgiveness,” which J.T. interpreted as an implicit admission that Perez
had sexually abused Maria. J.T. further testified that Perez physically restrained her on a
couch before leaving the room to retrieve a knife from the kitchen.
At that point, J.T. ran out of the house and placed separate calls to her sister and
sister-in-law for help. One sister called the police, and both sisters drove to the house.
Just before the police arrived, Perez left in the family vehicle. As he was getting into the
vehicle, J.T. saw the kitchen knife in Perez’s back pocket. One of the sisters testified that
as Perez was leaving, he shouted in Spanish something to the effect of, “I’m going to give
myself up.” Shortly after he left the scene, Perez crashed his vehicle into a light pole. The
police found Perez unconscious in his vehicle; he had suffered a stab wound to his
abdomen and was holding a crucifix. One officer opined that “it looked like a self-inflicted
wound.” The police recovered a bloody kitchen knife on the floorboard of the vehicle, and
J.T. identified it as the same knife that was in Perez’s possession when he left the house.
In the following days, Maria revealed additional details about the alleged abuse to
her mother. According to J.T., Maria first described an incident that occurred while they
were living in the apartment. Maria was in the bathroom in her underwear, getting ready
to take a shower, when Perez came in the room and pulled down his pants so that he
was only wearing boxers. Perez then “sat [Maria] on top of him and she felt his private
part on her private part.” Maria also described a separate incident to her mother that
occurred while Maria was asleep in her bedroom at the purple house. Maria told J.T. that
she awoke to what felt like “worms down there” and that Perez was “licking her private.”
4
On April 1, 2019, Maria was taken for a forensic interview at the local Child
Advocacy Center. Without going into detail about what Maria said, the interviewer testified
that Maria made an outcry of sexual abuse and identified Perez as her abuser. The
interviewer confirmed that Maria described “more than one act of sexual abuse” and that
the abuse occurred “more than one time.” Maria also saw a sexual assault nurse examiner
while she was at the Child Advocacy Center. During the exam, Maria provided the nurse
with a narrative of the alleged abuse that was memorialized in a written report. The report
was admitted into evidence, and the nurse read Maria’s narrative into the record, including
the following allegations:3
He has been kissing me in the lips—patient points to mouth—and laying
down with me. And then I woke up and felt something, and then I woke up
and I said, what are you doing? He said nothing. He kissed me on my lips.
Patient points to mouth. It felt warm, but it was his tongue in my lips. Patient
points to mouth. I was taking off my clothes and [A.D.R.] was in the shower,
and then I put the towel on me and I said, I’m going to shower, and he said,
sit on me. And he put his private part on me, like just on my underwear. He
didn’t take it off or nothing. He licked me. I always sleep in my underwear. I
felt warm and I was asleep. I felt something and my dad pulled off my shorts
and he laid down. It was on my private part. Patient points to female sexual
organ, the tongue. He said, you better not say anything, but I didn’t listen to
him.
The lead police investigator assigned to the case had the opportunity to observe a
recording of the forensic interview. According to the investigator, Maria gave a detailed
description of the alleged abuse that “was consistent through[out] her forensic interview.”
He also noted that Maria’s “story didn’t change” between her outcries, forensic interview,
and medical examination. In his experience, a child as young as Maria would not have
3 Because the nurse’s report contains numerous run-on sentences, we have elected to use the
reporter’s transcription of the narrative as it was read into the record.
5
been able to maintain a consistent story with that level of detail if she had been coached
on what to say.
After the allegations of abuse came to light, Perez was interviewed by a Child
Protective Services (CPS) investigator. According to the CPS investigator, Perez
admitted that he kissed Maria on the mouth once and instructed Maria not to tell her mom
because “it was inappropriate [and] wasn’t supposed to happen.”
Maria, who was ten years old at the time of trial, could not recall specific dates, but
she was able to identify where she was living and which of her sisters had been born
during the period of alleged abuse. She said the abuse began after A.D.R. was born but
before A.L.R. was born. She confirmed that the abuse continued after both A.L.R. and
A.A.R. were born. She also agreed that the abuse occurred “that whole time” and that it
happened “more than two times.”
As far as specific acts of sexual abuse, Maria testified that Perez would use “[h]is
hands” to “touch” her “private part” when they were living at the apartment. When asked
what she uses her private part for, Maria responded that she uses her private part for
“[p]eeing.” Maria further testified that when they moved into the purple house, Perez
would come to her room at night and “put his tongue on [her private part].” She also said
that Perez “would kiss me and, like, tell me to touch his parts.” When asked what she
meant by “his parts,” Maria explained that she was referring to “[h]is private.”
Perez raised several defensive theories in his opening statement. Among them,
Perez suggested that the allegations against him were impossible because he was never
alone with Maria, and the household was full of people. He also said the allegations were
6
manufactured by J.T., whom Perez described as jealous, volatile, and vindictive. As far
as his stab wound, Perez claimed that it was a freak accident that occurred during the car
wreck.
Perez’s brother, who lived with the family during the period of alleged abuse,
testified on Perez’s behalf. He did not see any abuse but agreed with the State that if any
abuse had occurred, it would have happened in private. He also said he did not believe
his brother’s account of how the stabbing occurred. Several of Perez’s other family
members testified that they had spent time around the family, they had never seen any
abuse, and Maria had never made any accusations to them about abuse.
Perez did not object to the jury charge, and the jury returned a guilty verdict on
each charge. Perez elected to be punished by the trial court and was sentenced to twenty-
five years’ confinement on the continuous sexual abuse conviction and five years’
confinement on each aggravated sexual assault conviction. The trial court ordered the
sentences to be served consecutively. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
Perez first contends that the evidence was insufficient to support his conviction for
continuous sexual abuse because “the jury could only speculate as to whether the first
and last acts of sexual abuse were separated by at least 30 days.”
A. Standard of Review & Applicable Law
To satisfy constitutional due process requirements, a criminal conviction must be
supported by sufficient evidence. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.
2009). “Evidence is sufficient to support a criminal conviction if a rational jury could find
7
each essential element of the offense beyond a reasonable doubt.” Stahmann v. State,
602 S.W.3d 573, 577 (Tex. Crim. App. 2020) (citing Jackson v. Virginia, 443 U.S. 307,
319 (1979)). In a legal sufficiency review, “we consider all the evidence in the light most
favorable to the verdict and determine whether, based on that evidence and reasonable
inferences therefrom, a rational juror could have found the essential elements of the crime
beyond a reasonable doubt.” Hammack v. State, 622 S.W.3d 910, 914 (Tex. Crim. App.
2021). We defer to the jury’s role as the factfinder, which includes “resolving conflicts in
the testimony, weighing the evidence, and drawing reasonable inferences from basic
facts.” Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). “[A]n inference is a
conclusion reached by considering other facts and deducing a logical consequence from
them.” Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013) (quoting Hooper
v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007)). We consider “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.” Murray, 457 S.W.3d at
448 (quoting Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).
We measure the sufficiency of the evidence against “the elements of the offense
as defined by the hypothetically correct jury charge for the case.” Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct charge is one that
accurately sets out the law, is authorized by the indictment, does not unnecessarily
increase the State’s burden of proof or restrict its theories of liability, and adequately
describes the particular offense for which the defendant was tried. Id. “To obtain a
conviction for continuous sexual abuse of a child, the State must show that the defendant
8
committed at least two acts of sexual abuse against a child younger than 14 years of age
during a period of at least 30 days’ duration.” Ramos v. State, 636 S.W.3d 646, 651 (Tex.
Crim. App. 2021) (citing TEX. PENAL CODE ANN. § 21.02(b)). “[M]embers of the jury are not
required to agree unanimously on which specific acts of sexual abuse were committed by
the defendant or the exact date when those acts were committed.” TEX. PENAL CODE ANN.
§ 21.02(d). But, the proof must establish “there is at least 28 days between the day of the
first act of sexual abuse and the day of the last act of sexual abuse.” Smith v. State, 340
S.W.3d 41, 48 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see Turner v. State, 573
S.W.3d 455, 461 (Tex. App.—Amarillo 2019, no pet.); Pelcastre v. State, 654 S.W.3d
579, 586 (Tex. App.—Houston [14th Dist.] 2022, pet. ref’d).The uncorroborated testimony
of a child victim alone is sufficient to support a conviction for a sexual offense. TEX. CODE
CRIM. PROC. ANN. art. 38.07(b)(1).
B. Analysis
Perez argues that Maria’s testimony was too “vague” to satisfy the duration
element of the offense because she used the births of her sisters to describe the period
of abuse. However, “[t]he legislature created the offense of continuous sexual abuse of a
child in response to a need to address sexual assaults against young children who are
normally unable to identify the exact dates of the offenses when there are ongoing acts
of sexual abuse.” Michell v. State, 381 S.W.3d 554, 561 (Tex. App.—Eastland 2012, no
pet.). And just as the legislature anticipated, children often use life events rather than
specific dates to define the period of continuous abuse. See, e.g., Baez v. State, 486
S.W.3d 592, 595 (Tex. App.—San Antonio 2015, pet. ref’d) (finding evidence of
9
continuous abuse sufficient where the complainant testified that the abuse began in the
middle of sixth grade and ended when she moved out of the defendant’s house). Jurors
are permitted to take these benchmarks and draw a reasonable inference about the
period of abuse. Wishert v. State, 654 S.W.3d 317, 328–29 (Tex. App.—Eastland 2022,
pet. ref’d).
Here, it was undisputed that A.D.R. was born on June 25, 2016, A.L.R. was born
on July 31, 2017, and A.A.R. was born on December 31, 2018. Maria testified that the
abuse began between the births of A.D.R. and A.L.R. and continued to occur after
A.A.R.’s birth. Even when Maria’s timeline is compressed to its shortest possible length,
a reasonable juror could infer that the period of abuse began no later than July 30, 2017,
the day before A.L.R. was born, and ended no earlier than January 1, 2019, the day after
A.A.R. was born. See Wishert, 654 S.W.3d at 328–29; Baez, 486 S.W.3d at 595. This
period of continuous abuse was clearly more than thirty days in duration. See TEX. PENAL
CODE ANN. § 21.02(b). Accordingly, the evidence was sufficient to support the conviction.
Perez’s first issue is overruled.
III. JURY CHARGE ERROR
By his second, third, and fourth points of error, Perez argues that he was
egregiously harmed by unobjected-to errors in the jury charge. Specifically, Perez
complains that “[t]he charge did not clearly tell the jury that the acts had to be at least 30
days apart.” He also argues that the jury was not required to agree on the specific dates
or acts of sexual abuse, and this effectively denied him his constitutional right to a jury.
10
A. Standard of Review & Applicable Law
A jury charge must instruct the jurors on the law that is applicable to the case. TEX.
CODE CRIM. PROC. ANN. art. 36.14. “Because the charge is the instrument by which the
jury convicts, it must contain an accurate statement of the law and must set out all the
essential elements of the offense.” Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim.
App. 2012) (cleaned up). A jury charge generally contains an abstract portion and an
application paragraph. “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 v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012). “The
application paragraph is what explains to the jury, in concrete terms, how to apply the law
to the facts of the case.” Yzaguirre v. State, 394 S.W.3d 526, 530 (Tex. Crim. App. 2013).
Alleged jury-charge error involves a two-step analysis: “First, we determine
whether the charge is erroneous. If it is, then we must decide whether the appellant was
harmed by the erroneous charge.” Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim.
App. 2022). To determine whether jury charge error occurred, a reviewing court “must
examine the charge as a whole instead of a series of isolated and unrelated statements.”
Vasquez, 389 S.W.3d at 366 (quoting Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim.
App. 1995)). When the appellant fails to timely object to the alleged error, as occurred
here, the record must show that the appellant was egregiously harmed by the error.
Alcoser, 603 S.W.3d at 165. “An erroneous jury charge is egregiously harmful if it affects
the very basis of the case, deprives the accused of a valuable right, or vitally affects a
defensive theory.” Id.
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To establish continuous sexual abuse of a young child, the State must prove four
elements: (1) the defendant “commit[ted] two or more acts of sexual abuse,” (2) “during
a period that is 30 or more days in duration,” and “at the time of the commission of each
of the acts of sexual abuse,” (3) the [defendant was] 17 years of age or older,” and (4) “the
victim [was] a child younger than 14 years of age.” TEX. PENAL CODE ANN. § 21.02(b).
B. Duration Element
Perez argues that the jury charge “as a whole” permitted the jury to convict him by
finding that he committed two or more acts of sexual abuse, even if the acts occurred
fewer than thirty days apart. The jury instruction in question provides in pertinent part:
1.
A person commits the offense of Continuous Sexual Abuse of a Child if:
(1) During a period that is 30 days or more 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;
(2) At the time of the commission of each of the acts of sexual abuse,
the actor was 17 years of age or older and the victim is a child
younger than 14 years of age.
....
4.
You are instructed that members of the jury are not required to agree
unanimously on which specific acts of sexual abuse, if any, were committed
by the Defendant or the exact date when those acts were committed, if any.
The jury must agree unanimously that the Defendant, during a period that
was 30 or more days in duration, committed two or more acts of sexual
abuse as that term has been previously defined.
5.
Now if you find from the evidence beyond a reasonable doubt that
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the Defendant, ORLANDO REYES PEREZ, did then and there, in Hidalgo
County, Texas, during a period that was 30 or more days in duration, to-wit:
from on or about the 15th day of September, 2017, to on or about the 1st
day of December, 2018, when the defendant was 17 years of age or older,
committed two or more acts of sexual abuse against MARIA GARCIA, a
pseudonym, a child younger than 14 years of age, namely aggravated
sexual assault of a child and indecency with a child, then you will find the
Defendant guilty of the offense of Continuous Sexual Abuse of a Child as
charged in this indictment.
Perez has failed to explain how this language misstates the law. See Vasquez, 389
S.W.3d at 366. The charge expressly required a finding that, during a period that was
thirty or more days in duration, Perez committed two or more acts of sexual abuse, and
thus the charge reflects the language and structure of the offense as provided by the
Penal Code. See TEX. PENAL CODE ANN. § 21.02(b). We disagree with any suggestion
that delineating the period of continuous abuse with specific dates that were themselves
more than thirty days apart somehow nullified the abstract portion of the charge or the
immediately preceding requirement in the application paragraph that Perez committed
two or more acts of sexual abuse “during a period that was 30 or more days in duration.”
See id.; Lewis v. State, No. 14-21-00691-CR, 2023 WL 4873306, at *7 (Tex. App.—
Houston [14th Dist.] Aug. 1, 2023, pet. ref’d) (finding no jury charge error where the trial
court used similar language in the application paragraph); see also Chavez v. State, No.
13-22-00551-CR, 2023 WL 5486232, at *3–4 (Tex. App.—Corpus Christi–Edinburg Aug.
24, 2023, no pet.) (mem. op., not designated for publication) (same); but see Turner, 573
S.W.3d at 462 (concluding that similar language was erroneous because, “[w]hile
someone with an understanding of the statute might argue that this provision is clear, the
express language used does not make it clear that the first and last acts must occur thirty
13
or more days apart”). Instead, the timeframe provided in the application paragraph merely
“explain[ed] to the jury, in concrete terms, how to apply the law to the facts of the case.”
See Yzaguirre, 394 S.W.3d at 530.
The trial court’s only obligation is to accurately instruct the jury on the law
applicable to the case. TEX. CODE CRIM. PROC. ANN. art. 36.14. The trial court did so here
by tracking the language in the statute, and “[f]ollowing the law as it is set out by the Texas
Legislature will not be deemed error on the part of the trial judge.” Martinez v. State, 924
S.W.2d 693, 699 (Tex. Crim. App. 1996). Accordingly, we overrule Perez’s second issue.
C. Jury Unanimity & Right to a Jury Trial
By separate but interrelated issues, Perez argues that the jury charge violated his
right to a unanimous jury under the Texas Constitution and his right to a jury trial as
contemplated by the Sixth Amendment of the United States Constitution. See TEX. CONST.
art. V, § 13; U.S. CONST. amend. VI. He points to language in the jury charge that, in his
own words, “did not require the jury to agree on dates or specific incidents to form the
basis of their verdict as to Count 1.”
“Under our state constitution, jury unanimity is required in felony cases, and, under
our state statutes, unanimity is required in all criminal cases.” Ngo v. State, 175 S.W.3d
738, 745 (Tex. Crim. App. 2005). An error involving jury unanimity “vitiates the entire jury
verdict, calling into question whether the appellant received the jury trial guaranteed by
the Sixth Amendment at all.” Dixon v. State, 201 S.W.3d 731, 739 (Tex. Crim. App. 2006)
(Price, J., dissenting). Every juror must agree that “the defendant committed the same,
single, specific criminal act.” Ngo, 175 S.W.3d at 745. But this does not mean that the
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“jury must unanimously find that the defendant committed that crime in one specific way.”
Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim. App. 2008). In other words, “[t]he
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.” Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App.
2004).
The continuous sexual abuse statute expressly provides that “members of the jury
are not required to agree unanimously on which specific acts of sexual abuse were
committed by the defendant or the exact date when those acts were committed.” TEX.
PENAL CODE ANN. § 21.02(d). Rather, “[t]he 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.” Id. The jury instruction in this case tracked the statutory language.
We have previously held that § 21.02(d) does not violate the jury-unanimity
requirement because the individual “acts of sexual abuse are merely the manner and
means of committing an element of the offense.” Reckart v. State, 323 S.W.3d 588, 601
(Tex. App.—Corpus Christi–Edinburg 2010, pet. ref’d). Many of our sister courts have
reached the same conclusion. See Pollock v. State, 405 S.W.3d 396, 405 (Tex. App.—
Fort Worth 2013, no pet.) (collecting cases). Perez has not pointed to any authority that
would require us to revisit our prior holding. Accordingly, his third and fourth issues are
overruled.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
By his fifth issue, Perez argues that he was denied his constitutional right to
15
reasonably effective assistance of counsel because his trial counsel failed to object to the
alleged jury charge errors discussed above.
The United States and Texas Constitutions guarantee a criminal defendant the
right to reasonably effective assistance of counsel. U.S. CONST. amend. VI; TEX. CONST.
art. I, § 10; see TEX. CODE CRIM. PROC. ANN. art. 1.051; Strickland v. Washington, 466
U.S. 668, 686 (1984). To obtain a reversal of a conviction on grounds of ineffective
assistance of counsel, an appellant must show: (1) counsel’s performance fell below an
objective standard of reasonableness and (2) counsel’s deficient performance prejudiced
the defense, resulting in an unreliable or fundamentally unfair outcome of the proceeding.
Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009) (citing Strickland, 466 U.S.
at 687). “Deficient performance means that ‘counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.’”
Ex parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010) (quoting Strickland, 466
U.S. at 687). The burden is on the appellant to prove ineffective assistance of counsel by
a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999). “[F]ailure to show either deficient performance or prejudice will defeat the
ineffectiveness claim.” Id.Having found no error in the jury charge, Perez cannot show that his counsel’s
failure to object to the charge was deficient. See Navarro v. State, 623 S.W.3d 97, 113
(Tex. App.—Austin 2021, pet. ref’d) (“[T]he evidence did not authorize the submission of
an accomplice-witness instruction, either sua sponte by the trial court or on appellant’s
request, in the jury charge. Accordingly, appellant has not demonstrated that his counsel
16
was in error, much less deficient, for failing to request an accomplice-witness instruction
in the jury charge for prohibited sexual conduct.”). His fifth issue is therefore overruled.
V. DOUBLE JEOPARDY
Finally, Perez argues that his convictions for aggravated sexual assault of a child
violate his double jeopardy rights. The State confesses error in the judgment.
A. Applicable Law
The Double Jeopardy Clause of the Fifth Amendment, which is applicable to the
states through the Fourteenth Amendment, protects a person from multiple punishments
for the same offense. U.S. CONST. amends. V, XIV; Garfias v. State, 424 S.W.3d 54, 58
(Tex. Crim. App. 2014). “In the multiple-punishments context, two offenses may be the
same if one offense stands in relation to the other as a lesser-included offense, or if the
two offenses are defined under distinct statutory provisions but the Legislature has made
it clear that only one punishment is intended.” Littrell v. State, 271 S.W.3d 273, 275–76
(Tex. Crim. App. 2008).
As previously mentioned, “[t]o obtain a conviction for continuous sexual abuse of
a child, the State must show that the defendant committed at least two acts of sexual
abuse against a child younger than 14 years of age during a period of at least 30 days’
duration.” Ramos, 636 S.W.3d at 651 (citing TEX. PENAL CODE ANN. § 21.02(b)).
Aggravated sexual assault of a child is among the predicate offenses listed as an “act of
sexual abuse.” TEX. PENAL CODE ANN. § 21.02(c)(4).
Dual convictions for continuous sexual abuse and a predicate offense are
prohibited under certain circumstances. Id. § 21.02(e). “A defendant charged with
17
continuous sexual abuse who is tried in the same criminal action for an enumerated
offense based on conduct committed against the same victim may not be convicted for
both offenses unless the latter offense occurred outside the period of time in which the
continuous-sexual-abuse offense was committed.” Price v. State, 434 S.W.3d 601, 606
(Tex. Crim. App. 2014) (paraphrasing TEX. PENAL CODE ANN. § 21.02(e)). Put simply, “the
Legislature did not intend to permit dual convictions for continuous sexual abuse and for
an enumerated act of sexual abuse unless the latter occurred during a different period of
time.” Id.
B. Analysis
As the State acknowledges, Perez’s convictions for aggravated sexual assault
were based on acts of sexual abuse that Perez committed against Maria during the period
of continuous abuse. Accordingly, we agree with the parties that the Legislature did not
intend for Perez to be convicted separately for all three crimes. See TEX. PENAL CODE
ANN. § 21.02(e); Price, 434 S.W.3d at 606. Perez’s final issue is sustained.
C. Remedy for Double Jeopardy Violations
When a multiple-punishment violation occurs, “the remedy is to affirm the
conviction for the most serious offense and vacate the other convictions.” Bigon v. State,
252 S.W.3d 360, 372 (Tex. Crim. App. 2008). Generally, the most serious offense is “the
offense in which the greatest sentence was assessed.” Id. at 373. Here, the greatest
punishment assessed was for the continuous sexual abuse conviction. Therefore, we
retain that conviction and vacate the other two convictions. See id.18
VI. CONCLUSION
We affirm the conviction for continuous sexual abuse of a young child and vacate
the convictions for aggravated sexual assault of a child.
GINA M. BENAVIDES
Justice
Concurring Opinion by Chief Contreras.
Publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
22nd day of February, 2024.
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