Salvador Canuto Cruz v. the State of Texas ( 2024 )

NUMBER 13-22-00573-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
SALVADOR CANUTO CRUZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 275th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Longoria, Silva, and Peña
Memorandum Opinion by Justice Silva
Appellant Salvador Canuto Cruz appeals his conviction for aggravated sexual
assault of a child, a first-degree felony, for which he was sentenced to twenty-five years’
confinement. See TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(iii), (a)(2)(B); see also id.
§ 22.021(f)(1) (requiring a minimum sentence of twenty-five years’ confinement if the
victim is younger than six years of age). By a single issue, Cruz argues that Texas Penal
Code § 21.02(e) prohibited the trial court from submitting a charge for both continuous
sexual abuse of a young child and one of the predicate offenses to the jury. See id.
§ 21.02(e) (providing that “[a] defendant may not be convicted in the same criminal action
of a[] [predicate] offense . . . the victim of which is the same victim as a victim of the
[continuous sexual abuse] offense alleged . . . unless” one of three exceptions apply). We
affirm.
I. BACKGROUND
A grand jury indicted Cruz for continuous sexual abuse of Luna, a child under the
age of fourteen, between October 11, 2010, through September 1, 2013 (Count One) and
aggravated sexual assault of Luna on or about April 3, 2012, when she was under the
age of six (Count Two). 1 See id. § 21.02(b); id. § 22.021(a)(1)(A)(iii), (a)(2)(B). Cruz did
not object to the indictment or seek to have either count of the indictment quashed.
The case proceeded to a jury trial. After the conclusion of evidence, the trial court
held a charge conference outside the presence of the jury. During the conference, the
parties and the trial court crafted the agreed upon jury charges. The trial court issued two
jury charges. The first charge was for Count One: continuous sexual abuse of a young
child. See id. § 21.02(b). The second charge was for Count Two: aggravated sexual
assault of a child younger than six years old. See id. § 22.021(a)(1)(A)(iii), (a)(2)(B). Cruz
did not object to either charge.
1“Luna” is a pseudonym used in the indictment to protect the identity of the complainant. See TEX.
CONST. art. I, § 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”).
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The jury found Cruz not guilty of Count One but guilty of Count Two. Cruz elected
for the trial court to assess his punishment, which sentenced him to twenty-five years’
confinement. See id. § 22.021(f)(1). Cruz filed a motion for new trial, which was overruled
by operation of law. This appeal followed.
II. APPLICABLE LAW AND STANDARD OF REVIEW
In reviewing a challenge to a jury charge, we first must determine if the jury charge
contained error. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). “[W]e review
alleged charge error by considering two questions: (1) whether error existed in the
charge; and (2) whether sufficient harm resulted from the error to compel reversal.” Ngo
v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). If error is found, we then analyze
the harm resulting from the error. Id. at 743. If “an error is preserved with a timely
objection . . . then the jury[ ]charge error requires reversal if the appellant suffered some
harm as a result of the error.” Sanchez v. State, 376 S.W.3d 767, 774 (Tex. Crim. App.
2012) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). “The failure
to preserve jury[ ]charge error is not a bar to appellate review, but rather it establishes the
degree of harm necessary for reversal.” Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim.
App. 2008). If the appellant fails to preserve jury charger error, then we review the record
for egregious harm. Sanchez, 376 S.W.3d at 775.
To determine harm, we consider four factors: (1) the charge itself, (2) the state of
the evidence, including contested issues and the weight of the probative evidence,
(3) arguments of counsel, and (4) any other relevant information revealed by the trial
record. Villarreal v. State, 453 S.W.3d 429 433 (Tex. Crim. App. 2015). “Egregious harm
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deprives appellant of a fair and impartial trial.” Trejo v. State, 313 S.W.3d 870, 871 (Tex.
App.—Houston [14th Dist.] 2010, pet. ref’d) (citing Almanza, 686 S.W.2d at 171). “Charge
error is egregiously harmful if it affects the very basis of the case, deprives the defendant
of a valuable right, or vitally affects a defensive theory.” Servin v. State, 582 S.W.3d 629,
631 (Tex. App.—San Antonio 2019, no pet.) (quoting Villarreal, 453 S.W.3d at 433).
“Egregious harm is a ‘high and difficult standard’ to meet, and such a determination must
be ‘borne out by the trial record.’” Villarreal, 453 S.W.3d at 433 (quoting Reeves v. State,
420 S.W.3d 812, 816 (Tex. Crim. App. 2013)). Regardless of the degree of harm required
to be shown, the “appellant must have suffered actual, rather than theoretical, harm.”
Warner, 245 S.W.3d at 461.
Texas Penal Code § 21.02(e) states that
A defendant may not be convicted in the same criminal action of an offense
listed under Subsection (c) the victim of which is the same victim as a victim
of the offense alleged under Subsection (b) unless the offense listed in
Subsection (c):
(1) is charged in the alternative;
(2) occurred outside the period in which the offense alleged under
Subsection (b) was committed; or
(3) is considered by the trier of fact to be a lesser included offense of
the offense alleged under Subsection (b).
TEX. PENAL CODE ANN. § 21.02(e). Subsection (b) is the primary offense of continuous
sexual abuse of a young child, while Subsection (c) sets out the predicate offenses,
including aggravated sexual assault under § 22.021. Id. § 21.01(b), (c); see id. § 22.021.
The court of criminal appeals
has construed [§] 21.02(e) of the [Texas] Penal Code to prohibit the State
from obtaining convictions for both the overarching offense of continuous
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sexual abuse of a child and for any of the predicate offenses, listed in
[§] 21.02(c), shown to have occurred as underlying acts of sexual abuse for
purposes of proving that continuous sexual abuse.
Ramos v. State, 636 S.W.3d 646, 652 (Tex. Crim. App. 2021) (first citing Soliz v. State,
353 S.W.3d 850, 853 (Tex. Crim. App. 2011) (“Aggravated sexual assault committed
within the time frame of the indicted offense could be charged in the alternative or as a
lesser-included offense (leading to just one conviction), but it could not be charged as an
additional offense (leading to two convictions).”) (construing TEX. PENAL CODE ANN.
§§ 21.02(c); 21.02(e)); then citing Price v. State, 434 S.W.3d 601, 606 (Tex. Crim. App.
2014) (“A defendant charged with 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.”); and
then citing Allen v. State, 620 S.W.3d 915, 921 (Tex. Crim. App. 2021) (“[I]n determining
whether a defendant may be convicted for a continuous abuse offense and an offense
listed in § 21.02(c) in the same criminal action and against the same victim, the proper
consideration is whether the evidence shows that the § 21.02(c) offense occurred outside
of the period that the continuous abuse offense was committed.”)).
The court of criminal appeals has further noted that
§ 21.02(e) begins by saying that a defendant ‘may not be convicted’ of a
§ 21.02(c) offense instead of ‘may not be charged.’ Thus the § 21.02(e)
prohibition against dual convictions, and therefore any exception to
§ 21.02(e), presupposes that the defendant has been convicted of a
continuous abuse offense in the first place.
Allen, 620 S.W.3d at 920.
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III. ANALYSIS
Although § 21.02(e) generally applies once a defendant has been convicted of
continuous sexual abuse, see id., thus preventing a double jeopardy violation, Cruz insists
his complaint is not one of double jeopardy. Instead, Cruz maintains “that the jury’s verdict
of guilty as to Count Two cannot stand, because it was a predicate offense under Count
One, and was not submitted as a lesser included offense . . . a clear violation of the
statute.” Cruz further argues that “[t]he trial court erred in allowing the State to submit the
lesser included offense of aggravated sexual assault to the jury without following the
procedure set forth in [§] 21.02(e).” Accordingly, we construe Cruz’s argument to allege
charge error.
Assuming without deciding that the trial court erred by submitting both charges
without the second charge being presented as a lesser included or in the alternative, 2
see TEX. PENAL CODE ANN. § 21.02(e)(1), (3), Cruz nonetheless will not succeed as he
failed to brief harm. See TEX. R. APP. P. 38.1(i); Wolfe v. State, 509 S.W.3d 325, 343 (Tex.
Crim. App. 2017) (“An appellate court has no obligation to construct and compose an
appellant’s issues, facts, and arguments with appropriate citations to authorities and to
the record.” (cleaned up)); Briceno v. State, 675 S.W.3d 87, 96 (Tex. App.—Waco 2023,
no pet.) (finding waiver where appellant “inadequately briefed” an issue); Chaves v. State,
630 S.W.3d 541, 558 (Tex. App.—Houston [1st Dist.] 2021, no pet.) (holding that
appellant’s argument was waived where harm was not adequately briefed).
2 It is undisputed that the offense for Count Two occurred within the time frame of the evidence
presented in Count One.
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Moreover, even if we were to consider harm, the court of criminal appeals has
made it clear that § 21.02(e) operates to prohibit convictions of both continuous sexual
abuse and one of its predicated offenses. See TEX. PENAL CODE ANN. § 21.02(e); Ramos,
636 S.W.3d at 652; Allen, 620 S.W.3d at 920; Price, 434 S.W.3d at 606; Soliz, 353 S.W.3d
at 853. Because Cruz was not convicted of both offenses, it would be difficult to conclude
that he suffered egregious harm from the trial court’s failure to present Count Two in the
alternative or as a lesser included. See TEX. PENAL CODE ANN. § 21.02(e); Sanchez, 376
S.W.3d at 775. Cruz’s sole issue is overruled.
IV. CONCLUSION
We affirm the trial court’s judgment.
CLARISSA SILVA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
1st day of February, 2024.
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