### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00839- CR

Arm ando Castill eja, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR2011 -41 0, TH E H ONO RAB LE JACK H . RO B ISO N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found appellant Armando Castilleja g uilty of multipl e child sexual abuse offe nses—six counts of indece ncy wi t h a child by sexual contac t and two counts of ag g ravated sexual assault of a child—for sexually abusing his adopted daug hter, T.C., during her c hildhood. 1
See Tex. Penal Code §§ 21.11(a)(1 ), 2 2 .021(a) (1)( B)

. The jury assessed 20 y ear s in prison and a $1,000 fine as appellant’ s punishment for eac h of the indece ncy counts, and 99 y ear s in prison and

a $1,000 fine as his punishment for eac h of the ag g ravated-sexual-assa ult counts. See id. §§ 12.32,

The jury hear d evidenc e that appellant perpe trated various sexual acts ag ainst his adopted 1 daug hter on fre quent and repe ated occa sions beg inning whe n T.C. was eig ht a nd ending when she was 13 or 14, including touching her breasts, ki ssing and sucking her br easts, “try ing to lick [her] vag ina,” touching her g enitals (rubbing “[her] vag ina” outside her underw ear as well as “stick[ing] his hands inside [her] underw ear ” and “rub[bing] [her] clit are a”) , penetr ating her sexual org an with his fing ers, and g etting on top of her and “g rinding ” his penis ag ainst her sexual org an. Be cause the parties are familiar with the fac ts of the case , its proce dural history , and the evidenc e adduce d at trial, we do not rec ite them in this opinion except as nece ssary to advise the parties of the Court’s decision and the ba sic rea sons for it. See Tex. R. App. P . 47.1, 47.4.12.33. The trial court sentenc ed appe llant in accor dance with the jury ’s verdict, order ing some of

the sentenc es to be serve d consec utively

. See id. § 3.03(b)( 2)(A)

. On appea l, appellant challeng es
t h e trial court’s cumulation order and complains about the admission of photogr aphic evidenc e. Finding no reve rsible err or, we aff irm the trial court’s judgme nts of conviction for counts one, two, three , four, five, six , and seven. To corr ect non-reve rsible error in the judg ment of conviction for
count eig ht, we modify that judgme nt and , as modified, aff irm the trial court’s judgme nt of conviction for c ount eig ht.

DISCUSSIO N

Cum ulation of S entence s After the jury returne d its punishment verdic t, the State reque sted that appellant’ s
sentenc es be “stac ked.” Ultimately , in the oral pronounce ment of sentenc e, the trial court order ed 2 the s entenc es for counts one, two, and three t o run conc urre ntly with eac h other, a

nd then ordered the sentenc es for counts four, five, six , seven, and eig ht to run co n cu rr ently with eac h other but

consec utively to the sentenc es for counts one, two, and three

. The written judgme nts of conviction ref lect that cumulation order : the concur rent sentenc es for counts four throug h eig ht are “stac ked”

on the concur

rent sentenc es for counts one throug h three

. I n his f irst two points of err or, appellant claims that the trial cour

t erre d in cumulating his sente nces.

The jury assessed the following prison sentenc es: 20 y ear s for count one (indec ency with 2 a child by sexual contac t), 20 y ear s for count two (indec ency with a child by sexual contac t), 20 y ear s for count three (indec ency with a child by sexual c ontact), 20 y ear s for count four (indec ency with a child by sexual contac t), 99 y ear s for count five (ag g ravated sexual assault of a child), 20 y ear s for count six (indec ency with a child b y sexual contac t), 99 y ear s for count seven (ag g ravated sexual assault of a

child), and 20 y ear s for c ount eig ht (indece ncy with a child by

sexual contact). 2Appellant raises his complaints about the cumulation of his sentenc es for the first

time on appea l. Howeve r, an improper cumulation order is a void se ntence , and such err or cannot be waived. LaPorte v

. State , 840 S.W .2d 412, 415 (Tex. Crim. App. 1992); see Levy v. State , 818 S.W .2d 801, 802 (Tex. Crim. App. 1991) (sentenc es not authorized by law ar e void; defe ct which

re n ders sentence void may be raised at any time). There fore , a contemporane ous object i o n i s n o t

nece ssary to prese rve cumulation err or for appellate revie w, L a P o r t e , 840 S.W .2d at 415, and we examine whether

it was err or for

the trial cour

t to cumulate these f

ive sentenc es. When multipl e offe nses arising out of the “same criminal ep i s o d e” are tried in the same criminal action, the sentenc es must be concur rent unless a s p ec i fi c statutory exception within chapte r three of the Texas Penal Code provides otherwise. See Tex. Pena l Code § 3.03(a) ; 3 Sullivan v. State , 387 S.W .3d 649, 651 (Tex. Crim. App. 2013). One such ex ce p t i o n provides that consec utive sentenc es may be imposed for convictions for cer t ai n t y p es of sexual offe nses if th e o ffe nses wer e committed ag ainst a child victim. See Tex. Penal Code § 3.03(b)( 2)(A)

. This exception applies only

to offense s committed on or afte r September 1, 1997. See Act of Ma y 24, 4

The joinder statutes of the Penal Code allow the State to prosec ute a defe ndant “for all 3 offe nses arising out of the same criminal episode” in a single criminal action. See Tex. Penal Code § 3.02(a)

. A “cr iminal e pisode” includes “the commission of two or more offe nses [when]

. . . the offe nses ar e the r epea

ted commission of the same or simil ar of

fense s.” Id. § 3.01. The provision of section 3

. 0 3 o f t h e T exas Penal Code adding the exception for the 4 cumulation of sentenc es for child sexual abuse offe nses, section 3.03(b)( 2)(A) , was enac ted in 1997 and beca me eff ective September 1, 1997. See Act of May 24, 1973, 63d L eg ., R.S., ch. 399, § 1, 1973 Tex. Gen. L aws 883, 891, amende d by Act of May 31, 1997, 75th L eg ., R.S., ch. 667, §§ 2, 8, sec. 3.03, 1997 Tex. Gen. L aws 2250, 2251–53 (now codified at Tex. Penal Code § 3.03(b)( 2)(A) ). The saving s clause to the bill amending section 3.03 to add the exception provides, in rele vant part, that “[t] he chang e in law made by this Act applies only to an offen s e co m m i t t ed on or afte r the eff ective da te of this Act.” See Act of Ma y 31, 1997, 1997 Tex. Gen. L aws a t 2253. 31973, 63d L eg ., R.S., ch. 399, § 1, 1973 Tex. Gen. L aws 883, 891, amende d by Act of May 31, 1997,

75th L eg ., R.S., ch. 667, §§ 2, 8, sec. 3.03, 1997 Tex. Gen. L aws 2250, 2251–53 (now codified at
Tex. Penal Code § 3.03(b)( 2)(A) ). I n his first point of err or, appellant contends that the trial court’s cumulation order is i n v al id beca use the evidenc e fails to support a finding that the offe nses for which the sentenc es were cumulated occu rr ed after S eptember 1, 1997, the date on which section 3.03(b)( 2)(A) , authorizing c umulation, became eff ective. The eig ht counts of the in dictment alleg e that appellant perpe trated the offe nses ag ainst T.C. “on or about” particular dates i n 1996, 1997, and 1998, and the written j udg ments of conviction rec ite as the offe nse date the date alleg ed in the corres p o n d i n g count. Howeve r, the 5 offe nse dates befor e September 1, 1997, alleg ed in counts four and five of the indictment and rec ited in the judgme nts for those counts, do not n ece ssarily rende r the trial court’s order stacking those
sentenc es invalid. See Hendrix v. State , 150 S.W .3d 839, 853 (Tex. App.—Houston [14t h Dist.] 2004, pet. ref

’d). Under section 3.03, the date that appellant committed the offe nses ag ainst T.C. deter mines whether the sentenc es may run consec utively

. As discussed below, if the evidenc e shows the offe nses wer e committed on or a fter Septe mber 1, 1997, c umulation is permitted.

The indictment alleg ed that appellant committed: indece ncy with a child by sexual contac t 5 on or about J anuar

y 1, 1996 (count one); indece ncy with a child by sexu al contact on or about J anuar y 1, 1996 (count two); indece ncy with a child by sexual contac t on or about Fe bruar y 1, 1996 (count three ); indece ncy with a ch i l d by sexual contac t on or about Aug ust 1, 1997 (count four) ; ag g rava ted sexual assault of a child on or about Aug ust 1, 1997 (count five); indece ncy with a child by sexual contac t on or about Aug ust 1, 1998 (count six ); ag g ravated sexual assault of a child on or about Aug ust 1, 1998 (count seven) ; and indece ncy with a child by sexual conta ct o n o r ab o u t Aug ust 1, 1998 (count eig ht). 4“The date of commiss i o n [of an offe nse] is not an element of any crime, and

s ec t ion 3.03(b) does not specify an evidentiary burden to trig g er the court’s authority to cumulat e

s e n te n c e s . ” O we n s v
. S

ta te , 9 6 S. W. 3 d 6 6 8 , 6 7 2 ( T e x. A p p . — A u s ti n 2 0 0 3 , n o p e t. ) ; s e e B a te s v
. S ta te , 164 S.W .3d 928, 930 (Tex. App.—Dallas 2005, no pet.). A t rial co urt has di scre tion to cumulate
sentenc es under section 3.03(b) when there is some evidenc e that the offe nses occur red aft er September 1, 1997, the eff ective date of the cumulation statute. Bates , 164 S.W .3d at 931; Hendrix , 150 S.W .3d at 853; Owens , 96 S.W .3d at 672.

The “on or about” lang uag e of a n indictment allows the S tate to prove a date other than the one alleg ed in the indictment as long as the date is anter io r t o t h e p re s en tment of the indictment and within the statutory limit ations period. Sledge v. State , 953 S.W .2d 253, 256 (Tex. Crim. App. 1997); Owens , 96 S.W .3d at 671. Her e, beca use the State used the phrase “on or about” in the counts of t he indi ctment, i t was f re e t o prove that these offenses occurr ed on any date prior
to the pre s en t m ent of the indictment, Aug ust 3, 2011, and within the statutory limit ations period fo r t h ese offe nses, which had not y et expired. See Tex. Code Crim. Proc. art. 12.01(a) (B ), (E). Acc o rding ly , the t rial court had the discretion to cumulate the sentenc es for counts four, five, six , seven, and eig ht under section 3.03(b) as long as there was some evidenc e indicating that appellant committed the crimes f

or which he was c onvicted in those counts af ter Septembe r 1, 1997. Appella n t ac k n o wledg es that the State was not bound by the dates alleg ed in the indictment. Howeve r, he arg ues that the “lac k of temporal marke rs” in T.C.’s tes timony bars cumulation o f an y o f h i s sentenc es beca use there is no timeline to establish whether the offe nses

wer e committed befor e or afte r the eff ective date of the cumulation statute. He maintains that there

5was no way for the trial court to deter mine whether the offe nses occur red befor e or afte r September 1, 1997 for c umulation purposes. We disag ree .

The trial court cumulated appellant’ s sentenc es for counts four, five, six , seven, and eig ht. I n these counts, appellant was convicted of “touching the brea sts of [T.C .] with the hands or fing ers of [appellant]” ( count four) ; “ca using the fema le sexual org an of [T.C .] to contac t the male sexual org an of [appellant]” (c ount five); “touc hing the brea sts of [T.C .] wit h the hands or fing ers of [ appellant]” (count six ); “ca using the penetr ation of t he female sex ual orga n of [ T.C. ] wi t h t he fing er of [appellant]” ( count seven) ; a nd “ca using the hand or hands of [T.C .] to touch the g enitals

or part of the g enitals of [appellant]” ( count eig ht). At trial the State offe red evidenc e of multipl e, repe ated, and fre quent abusive episodes, eac h constitu t i n g o n e or more of the char g ed offe nses, beg inning sometime whe n T.C. was eig ht and continuing unabate d for a t least five y ear s.

T.C. testified that she was born on J uly 9, 1988, and that she was abused “at least two Saturday s a month” from the time she was eig ht y ear s old (in 1996) until she was 13 or 14 (in 2001

or 2002). She descr ibed the various acts of sexual abuse that appellant perpe trated ag ainst her during
t hose y ear s, which included touching her brea sts with his hands, sucking and kissing her breas t s , touching her ge nitals with his hands , p en etrating her s exual org an with his fing er, penetra ting her mouth with his penis, and causing his p en i s to contac t her sexual org an. I n her testimony , T.C. confirme d that appellant wa s “touching her ge nitals in ’97 and ’98,” that appellant was “touching her brea sts in ’97 and ’98,” that appellant’ s “male sexual org an was contac ting [her] fema le sexual
org an in ’ 96, ’97, and ’98,” and that appellant was “pene trating [her] fe male sexual org an with his fing er in 1996, 1997, a

nd 1998.”

6Acc ording ly , viewed as a whole, the evidenc e shows that cer tain acts of appellant’ s sexual abuse of T.C.—the touching of her brea sts, the touching of her g enitals, the digital penetr ation of her fema le sexual org an, and the contac t of appellant’s penis to her sexual org an—occ urre d
repe atedly on a bi-monthly basis in 1998 and continued to occur bi-monthly until at least 2001, well afte r the September 1, 1997 eff ective date of the cumulation statute. Thus, there is some evidenc e that the offe nses appellant was convicted of in counts four, five, six , and seven occur red—multiple times—after September 1, 1997, the eff ective date of the cumulation statute. We conclude that the evidenc e as a whole supports the trial court’s exercise of its discretion under section 3.03(b) to order appellant’ s sentence s for counts four, five, six , and seven to r un consec utively to the sentenc es for counts one, two, a

nd three

. Howeve r, in count eig ht, appellant was convicted of indece ncy with a child by sexual
contac t for “ca

using the hand or hands of [T.C .] to touch the g en i t al s or part of the g enitals of [appellant].” T.C. testified that sometimes befor e appellant would g et on top of her and “g rind” his penis ag ainst h er sexual org an, he would wra p his penis in toilet paper “for when he would ejac ulate.” She said that sometimes she would g et the toilet paper from the bathroom, but sometimes it was alre ady by the bedside. She testified that “[appellant] would wra p his own penis,” but rec alled that “[she] did it one time.” This testimony was the only evidenc e of T.C. touching appellant’ s penis with her hands. Although the indictment alleg ed an offe nse date of Aug ust 1, 1998 for count eig ht, 6

There was evidenc e of T.C. touching appellant’ s penis with her mouth when she perf ormed 6 oral sex on him on one occa sion, but her descr iption of this incident did not ref lect that it involved her hands contac ting appellant’s penis. This conduct did not form the basis of any of t he charg ed offe nses. 7neither T.C.’s testimony nor the context in which it was g iven specifie s at what point during the fiveto six -y ear period of abuse this incident occur red. Thus, notwithstanding the date in the indictment, the evidenc e fails to demonstrate that appellant cause d T.C.’s hands to touch his penis (the offe nse for which he wa s co n v i ct ed in count eig ht) afte r September 1, 1997, the eff ective date of the cumulation statute. There fore , the t ri al court did not have the authority to cumulate the 20-y ear
sentenc e for that offe nse. See Y ebio v. State , 87 S.W .3d 193, 195–96 (Tex. App.—Texarkana 2002, pet. ref’d) (conc luding that althoug h indictments alleg ed that offe nses occurre d on or about Sep t em b er 5, 1997, prior statute applied when evidenc e showed that assaults occur red befor e beg inning of 1997 school y ear (bef ore September 1, 1997), an d re fo rm ing judgme nt to provide
t h at defe ndant’s sentenc es run concur rently instead of consec utively). This sentenc e must ru n

concur rently with the s entenc es for counts one, two, and three. See id. ; see als o T ex . P enal Code § 3

. 0 3 ( a )

. A c c o r d in g ly , w e mo d if y th e ju d gme n t o f c o n v ic ti o n f o r c o u n t e ig ht to d e le te th e c u

mu la ti o n order for that sentenc e. See Robbins v. State , 914 S.W .2d 582, 584 (Tex. Crim. App. 1996) (re medy for unlawful cumulation order is to ref orm judgme nt to set aside cumulation order ); see also Bee dy

v. State , 250 S.W .3d 107, 113 (Tex. Crim. App. 2008) (re aff irming that unlawful cumulation order is remedied by

ref orming judgme nt to delete cumulation orde r).
I n his second point of er

ror, a ppellant ar g ues that the trial cour t’s cumulation order violates the constitutional prohibition of ex post fac to laws. Both the United S t at es and Texas Co n s ti tu ti o n s p r o h ib it th e St a

te f r o m a p p ly in g a n e x p o s t f

a c to la w . S e e U

. S. Co n s t. a

r t. I , § 1 0 , c l. 1 ; Tex. Cons t. art. I , § 16. An ex post fac to la w (1) punishes as a c rime an a ct pre viously committed which was innocent when done, (2) chang es the punishment and inflicts a g reater punishment than

8the law attache d to a criminal offen s e when committed, or (3) deprive s a person char g ed with a

c r im e o f a n y d e f e n s e a v a il a b le a t th e ti me th e a c t w a s c o mm it te d

. Co ll in s v
. You n g

b lo o d , 4 9 7 U

. S. 3 7 , 42–43 (1990); Rodriguez v. S t a t e , 93 S.W .3d 60, 66 (Tex. Crim. App. 2002); Ex parte Davis , 947 S.W .2d 216, 219–20 (Tex. Crim. App. 1996). Appellant’s co m p l ai nt implicates the second
cate g ory of ex post fac to violations, alter ed punishment. A court eng ag ed in suc h an ex post fac to analy sis is singula

rly conce rned w ith whether the statute in question assigns more sever e criminal or penal conseque nce s to an act than di d the l aw in place when the act occurr ed. Grimes v. State , 807 S.W .2d 582, 587 (Tex. Crim. App. 1991); see Ex Parte Moussazadeh , 361 S.W .3d 684, 690 n.3 (Tex. Crim. App. 2012) (“A law that chang es t he punis hment for a crime a fter the crime ha s been committed is an unconstit utional ex post facto law only if it inflicts a g reater punishment than did the pre vious law.”).

A reasonable view of the evidence as a whole supports the t ri al court’s exercise of its discretion to cumul ate appellant’ s sentenc es for counts four, five, six , and seven. The rec ord contains evidenc e indicating that appellant indeed committed all of the crimes he was convicted of in those counts—multipl e times—afte r September 1, 1997. Thus, the evidenc e supports a f inding that the criminal conduct alleg ed in counts four, five, six , and seven occur red afte r the amendment of section 3.03(b). Consequently , in cumulating the sentenc es, the court did not attach a g reater punishment to these offe nses than the statutory provision exis ting when the conduct occur red. There

w a s n o e x p o s t f

a c to v io la ti o n . S e e D e Le o n v
. S ta te , 2 9 4 S. W. 3 d 7 4 2 , 7 4 5

– 7 4 9 ( T e x. A p p . — A ma r il lo 2009, pet. re f’d)

.

9Finding no abuse of discretion in the trial court’s cumulative sentenc ing of appellant

for counts four, five, six , and seven, we overr ule appellant’ s fi rs t and second points of err or as to those counts. Howeve r, finding err or in the cour t’s order cumulating the sentenc e for count eig ht, we sustain appe llant’s first point of err or as to count e ight. 7

Adm ission of Photograph During T.C.’s testimony , the State offe red a photogr aph of T.C. when she was eig ht
y ear s old—her ag e when appellant beg an sex ual abusingher. I n his third point of error, a ppellant
arg ues that the trial c ourt err ed by admitting the photog raph.
Preser vatio n o f err or is a sy stemic require ment on appea l. Blackshe ar v. State , 385 S.W .3d 589, 590 (Tex. Crim. App. 2012) ; see Bek endam v. State , 441 S.W .3d 295, 300 (Tex. Crim. App. 2014). A revie wing court should not addre ss the merits of an issue that h as n o t b een p r e s e r v e d f o r a p p e a l. W il s o n v
. S ta te , 3 1 1 S. W. 3 d 4 5 2 , 4 7 3

– 7 4 ( T e x. Cr im

. A p p . 2 0 1 0 )

. T o p r e s e r

v e

a complaint for appellate revie w, a party must have prese nted to the trial court a timely reque st, objection, or motion that states t he specific grounds for t he desired ruli ng if they ar e n o t apparent from the context. Tex. R. App. P. 33.1(a) (1); see Clark v. State , 365 S.W .3d 333, 339 (Tex. Crim. App. 2012). At trial, when the S tate offere d the complained-of photogra ph, appellant’ s counsel

asser ted t h at he had “[n] o objection” to the admission of the photogr aph. Consequently , beca use

Be cause we sustain appellant’ s first p o i n t of err or as it rela tes to the cumulation of his 7 sentenc e for count eig ht, we do not ad d re s s h i s complaint that the cumulation of that sentenc e violates ex post facto laws. See Tex. R. App. P . 47.1, 47.4. 10appellant did not object when the photogr aph was offe red, he failed to prese rve his complaint about

its admissi on for a

ppellate r eview. We overrule appellant’ s third point of error

. 8

CONCLUSION Having overr

uled appellant’ s three points of err or as to counts one, two, three , four, five, six , and seven, we aff irm the trial court’s judgme nts of conviction for those counts. Sustaining appellant’ s first point of err or as to the cumu l ative sentenc e for count eig ht, we modify the trial court’s judgme nt of conviction for count eig ht to corr ect the non-re versib l e err or: to delete “CONSECUTI VEL Y” and instead ref lect that the sentenc e shall run “CONCURRENTL Y” and to delete the cumulation order

. As so modified, we aff irm the judgme nt of conviction for count eig ht.

__________________________________________ Melissa Goodwin, Jus tice
Be fore J ustices Pury ear , Goodwin, and F ield Affir med in Part; Modified and, a s Modified, Aff irmed in Part Filed: De cembe r 23, 2014 Do Not Publish

Appellant asser

ts in his brief that his trial counsel “pre viously objected [t o the photogr aphs] 8 by way of limine.” Howeve r, althoug h appellant filed a motion in limine, the motion makes no ref ere nce to any photogr aphs. Mo re o v er , a mot ion in limine does not prese rve error for appellate revie w. See F

uller v. State , 253 S.W .3d 220, 232 (Tex. Crim. App. 2008). 11