### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 18
- 00788
- CR

Daniel Ray Campos, Appellant

v. The State of Texas, Appellee

FROM THE 27TH DISTRICT COURT OF BELL COUNTY NO. 77135, THE HONORABLE JOHN GAUNTT, JUDGE PRES IDING

M E M O R A N D U M O P I N I O N
A jury convicted appellant Daniel Ray Campos of the second

- degree felony
offense of sexual assault of a child

. S ee Tex . Penal Code § 22.0 1 1 (a)(2) (A) ( stating that person
commit s offense if person “ intentional ly or kno wingly .

. . cau s e s the pen e tration of the anus or sexual organ of a child by any means ” ) , (c ) (1) (defining “ child ” to mean “ per son younger than 17 years of age ” )

. The evidence at trial was undisputed that a ppellant had sexual intercourse
with C. F. when he was eighteen y e a rs o f age and s he was fourteen yea rs of age

. Raising two
issues , appellan t argues that the trial court erred by refusing to submit jury instructions on the
affirmative defenses of : (i) m ista ke of fact , see id. § 8. 02 ; (ii) mista ke of age ; and (iii) that “ the

act or was not m ore than three years older than the victim , ” s ee id. § 22.011 (e) (2)

. He further argues that the trial court ab used its discretion by admitting “ backdoor ” hearsay

. For the following reasons , w e aff irm the trial court ’ s jud gment of co nv iction

.2 Back ground
The St at e i ndicted appellant for the offense of sexual assaul t of a c hild , alleg ing
that on September 28, 2016, appellant :

did then and there intenti o nal ly and knowingly cause the penetration of the sexual organ of [C .F.] , a chil d who was then and ther e younger than 17 years of age, by the defen dant ’s sexual organ.

See id. § 22.011 (a)(2) (A) , (c)(1)

.

The jury trial occurred in October 2018

. I n the guilt

- innocence ph ase , t he S tate ’ s wi tnesses were C.F. , who testified ab o ut her se xual encounter with appellant ; her father, who
testified abo ut discoverin g what happened and reporting it to the police ; and an officer and investigator with the Temple Polic e Departme nt , who testified about t heir i nvestig ation of
C.F

. ’ s complaint

. T he eviden ce was largely undisputed

. C.F. testified that she was born on April 26, 200 2 , and t hat she me t app ellant online in 2016 by messaging him

. When they first
started t alking, C.F. was fourteen years of age , but she t estified that b ecause sh e was “ abou t to b e 15 , ” she “ probably told [app ellant] [she] was 15 at the time ” and that appellant told her “ he

was 17. ”
The first time C

. F. and appellant met in person was in September or October 2016 when appellan t wa s eighteen and C.F. was f ourteen

. O n that oc casion , C.F. invi ted appellant to
her house , and they had sexual intercourse in her bedroom

. Af ter that , t hey cont inued talking
onl ine and , a few weeks later, appel lant drove over to C.F. ’s ho use. This time, t he y sta y ed
outside i n app ellant ’s vehicle unt il C.F

. ’s father came out of the house

. T hey then drove down
the street , C. F. got out of the vehic l e , and returned to her home

. After her father confront ed her3

about “ where [she] was ” and “ what happened , ” C.F. told her father that she previou sly had sex
with a ppe l lant

. H e r father contacted the police.

The inve stigator interviewed C.F. a nd appellant , who ga ve a voluntary statem ent that the investigator t y ped and appel lant signed

. In his statement, a ppellant c onfirmed that he
was bo rn on April 21, 1998 , and stated that , before he graduated from high s chool in 2016, he
met C.F. onl ine and they “ became f rie nds , ” that they met in person one night around 11:00 p. m. at C.F. ’ s house and had sexual intercourse , and that after her father fou nd out, C.F. told ap pellan t
t hat she was sixteen years of age bu t that her father was going to the po lice be cause appellant

was “ over age
. ” Appel lant ’ s statement and a DVD recording of a ppellant ’ s interview w ere admitted as exhibi ts at trial

.

The trial cou rt d eni ed appell ant ’ s r equested jury instructions that would have
allow ed the jury to consider whether he had a “ rea sonable mistake of fact re gard ing the
differen ce in the complain an t ’ s and his age ” and the “ within

- th ree - years affirmative defense
witho ut a mistake of fact ” b ased on C.F. ’ s “ testimony that sh e represented her age in 20 16 as being 15. ” S ee id. § § 8.02, 22.011 (e) (2)

. The jury found appellant guilty and , after hear ing
additiona l testimony during the trial ’ s punishm ent phase , assess ed his p unishmen t at confine ment of three years and recommended community supervision

. The tr ial co urt entered judgment
consistent with the jury ’ s verdict , s uspending impo sition of the sentence and pl ac ing appellant on

c ommunity supervisio n for three years

. This appeal followed.4 Anal ysis Jury Charge
In his fir st issue, appellant argu e s that the trial court erred by re fusing to su bmit a mistak e - of

- fact instruction t o the jury regard ing the within

- three

- years affirma tive defense provided by section 2 2 .011 (e ) (2) or a mistake

- of

- age instruc tion as a matter of due process because he reasonably believed that C.F. ’ s age was within three years of his own age. See id. § § 8.02, 2 2 .011 (e) (2).

Standard of Review
We review all eged jury cha rge error in two step s: f irst, we determi ne whether

error exists; if so, we then e valuate whether sufficient harm resulted from the error to require
reversal. Arteaga v. State , 521 S.W.3d 329, 333 (Tex. Crim . App. 2017); Ngo v. State , 175 S.W .3d 738, 743 (Tex. Crim. App. 2005 ). The degree of ha rm required for reversal depends on whether the jury charge error was preserved in the trial court. Marshall v. State , 479 S.W.3d 840 , 843 (Tex. Crim. App. 2016); see Almanza v. State , 686 S.W.2d 157, 171 (Tex.
Cri m. App. 1985 ) (op. on reh ’ g) (setting for th procedure for appellate review of claim o f jury charge error). If the complaint about jury charge error was preserved in the trial court, as is the case here, “ then reversal is required if there was some harm to the defendan t. ” Mars hall , 479 S.W.3d at 843

.

“ A defend ant is entitled to an inst ruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or uncontradicted , and regardless of how the trial c ourt views th e credibilit y of the defe nse. ” Celis v. Sta te , 416 S.W.3 d 419 , 430 (Tex. Cri m. App. 2013) (citing Allen v. State , 253 S.W.3d 260, 267 (Tex.5

Crim. App. 2008)). “ However, ‘ [t]he issue of the existence of a de fense is not submitted to the jury unless eviden ce is admitt ed suppor ting the defense. ’ ” Ku hn v. State , 393 S.W.3d 519, 532 (T ex. App.

— Austin 2013, pet. ref ’ d) (quoting Tex. Penal Code § 2.03(c)). “ Therefore, if the evidence, when viewed in the light mos t favorable to the defendant, does not establish the
defense , the def

enda nt is not entitl ed to an instruc tion on the issue. ” Id. (citing Ferrel v. State , 55 S.W.3d 586, 591 (Tex. Crim. App. 2001)). “ [T]he evidence must be such that it will support
a rati onal jury finding as to each elemen t of the defe nse. ” Shaw v. State , 243 S.W.3d 647, 658 (T ex. Crim. App . 2007)

. In determining whether a defense is supported by the evidence, “ a court must rely on its own judgment, formed in the light of i ts own common sense and experience, as to the limits of ratio nal inferenc e from th e fa cts proven. ” Id.

Guided by the se standards, we turn to appellant ’ s complaint s about the jury charge

. Requested Defe nsive Instructions
S ection 22.011 (e) (2) provides an affirmative defense to the offense of sexual
assault in subsection (a)(2) if “ t he actor was not mo re than three years ol der than the victim ” at the time of the offense and the victim “ was a child of 14 years of age or o lder

. ” Tex. Penal Code § 22.011 (e) (2). Further, “ [i ] t is a defense to prosec ution that t he actor th rough mistake formed a
reasonab le belief about a mat t er of fact if his mistaken belief negated t he kind of culpability required for commission of the offense. ” Id. § 8.02(a).

Appellant argues that he reasonably believed that C.F. was less tha n three years
you n ger t ha n hi m and, theref ore , that he was entit le d to the statutory mistake

- of

- fact jury
instruction regarding the affirmative defense provided by section 2 2 .011 ( e) (2) of the Penal Code

.6

Appellant argues that the m istake

- of

- fact defense s hould apply to all elem en ts of an offense
bro ught under s ubsection ( a)(2)

— specifically , that it should apply to the victim ’ s age
. See id. § 22.011(a)(2), (e) (2). He further ar gues that he was entitled to a mistake

- of

- age instruction as a matter of due pr o cess
.

However, t he S tate did not ha ve to pr ov e a cu lpable m enta l state as t o C. F. ’ s age to prove the eleme nts of the offense of sexual assault of a child under section 22.0 11(a)(2)

. See
F leming v. State , 455 S.W.3d 577, 582 (Tex. Crim. App. 2014 ) ( e xplaining that section 22.011(a) (2) of Pena l C ode does not require cu lpabili ty as to age of victim ). Thus, a mistaken
belief a bout a complainant ’ s age does not negate the “ kind of culp a bi lity re quir e d for

comm ission of the off

ense. ” See id. ( “Because Section 22.021 requires no culpability as to t he age of the victim, ther e is nothing for the defendant’s mistaken belief to negate, and his mistake
cannot be a defense to prosecution. ” ); see also Tex. Penal Code § 8.02(a)

.

A ppel lant ack nowledges that th e Texas Court of Criminal Appeals “ has previous ly re

j ected [ the same ] arg uments ” that he makes as to this issue. See F leming , 455 S.W.3d at 580

– 8 3 ; see also Celis , 416 S.W.3d at 430

– 31 (describing current law applicable
to mistake

- of

- fact defense an d reaffirming that mistak e - of

- fact i nstruction “ is li mit ed to any culpable ment al state required for the offense ” )

. Despite this prec edent, a ppellant “ urge s this
Court to take the first step for the Co urt of Cri m inal Appeals to reconsider its prior decisi ons on thi s issue. ” As s upp ort, a ppellant ci tes sepa rat e writings by Ju dges of the Court of Criminal Appe als that , according to appella n t, show that they “ have been sharply divided ” on this issue ; the high court ’ s change in comp osit ion ; a law rev iew art ic le ; a 2017 amendment to s ection7

21.011 (a)(2) 1 ; and La wre nce v. Texas , 539 U.S. 558 (2003)

. See , e.g. , F leming , 455 S.W.3d at 5 89 (Keller, P.J., dissenting) (stating t hat she “ would hold that, a fter Lawrence v. Texas , in a
limite d nu mbe r of child sex cases , due process requires th e submission of an affi rmati ve defense
of reas onable m istake of age ” ) ; id. at 583 (Cochran, J., concurring) ( stating be lief that “ Texas statutory mistake

- of

- fact defense already applies to the offense of consensual statutory rape ” but

“ relu ctant ly ” joi ning majority opinion and rec ogn izi ng that her belief “ is not a current state of
the law in Texas ” ) ; Arnold H. Loewy, Statut ory Rape in a Post Lawrence v. Texas Wor ld , 58 SMU L. Rev. 77 (2005)

.

But “ a s an intermedia te appellat e court, we mu st follow the b inding precede nt of
the C o urt of Criminal Appeals. ” Gonz ales v . State , 190 S.W .3d 125, 130 n.1 (Tex. App.

— Houston [ 1 st Dist.] 2005, pet . ref ’ d); see State v. Stevenson , 993 S.W.2d 857, 867 (Tex. App.

— Fort Worth 1999 , no pet.) ( “ Because a de cision of t he court of criminal appeals is b ind ing
p recedent, w e are com pelled to comply with it s di ctates. ” ). Foll owing this pr ece dent , we cannot conclude t hat the trial court erred by refusing appellant ’ s request ed jury instructi ons for mista ke
of fact o r mistake of age, which were based on the e vid ence about his beli ef tha t h e was n ot more than three years older than C.F

. See F leming , 455 S.W.3d at 580

– 8 3 ; see also Arias v. State , 5 03 S.W.3d 523, 53 1 (T ex . App.

— San Antonio 2016, pet. ref ’ d ) (fol lowing F leming decision

an d holding that “ secti on 2 2.0 11(a)(2)( C ) i s not uncons titutional for failing to r equire the State to prove the defendant had a culpable mental state re gard ing the victim ’ s age or for f ailing to

c ontain a mistake

- of

- fact de fense as to the a ge of the victim ” ) ; Ford v. State , 488 S.W. 3d 350,

1 Section 2 2 .0 11(a) ( 2) of the Penal Code was amended in 2017 to add the underlined phrase : “ A perso n comm its an offens e if :
. . . regar dless of wh ether the person kn ows the age of the child at the time of the offense , the person intentionall y o r k no w ingly . . . ” See Act of May 26, 2017, 85 th Leg. , R.S., ch . 1038, § 6, 2017 Tex. Gen. Law s 4072, 4074 (ef fective Sept

. 1, 20 17)

.8

352 (Tex. App.

— Beaum ont 2016, no pet.) (declining “ to rev isit the issues addressed by t he
Court of C riminal Appeals in Fl eming ” and holding that section 22.011(a )(2) “ is not

uncons titutional

—under either t he Due Process Clause of the Fourteenth Ame ndm ent or the due
course of law provision of the Texas Constitution

— for failing to require the State to prove the
defendant had a culpable mental state regarding the victim ’ s age, or for f ailing to contain or

reco gnize a mistake

- of

- fact defense as to the a ge of the victim ” )

. To the extent that appe llant also is arguin g that he was entitled to an instruction
on the within

- three

- yea rs defense contained in section 2 2.011 (e) (2 ) b ased on the e vidence , we simil arly can not conclude that the trial co urt erred by ref using to submit an instru ction on this
grou nd

. Alth ough the re was evidence that C.F. told appe llant that she was fifteen or sixteen
years of age , the applicability of the within

- three

- years de fense is predicat ed on the actual a ge difference between a d efe ndant and a c hild

. See T ex. Penal C ode § 22.011(e) (2)

. Here, th e

ev idence was undisput ed that the difference betwe en appellant ’ s and C.F. ’ s actual age s was more than three years when they had sex ual interc ou rs e
. Thus, the evidence did not raise this def ense
. See Shaw , 243 S.W. 3d at 658 (explaining that “ evidence must be such that it will su pport a rational jury finding as to each element of the defense ” ); Kuhn , 393 S.W.3d at 532 ( explaini ng that “ [t] he issu e of the existence of a de fense is not submi tte d to the jury unle ss evid ence is admitted supporting the defense ” (quoting Tex. P enal Code § 2.03 (c) )

.

For these reasons, w e conclude that t he trial court did not err by refu sing to

su bmit appellant ’ s reques t ed jury instru ctions as to the defenses of mis tak e - o f

- fact , mistake

- of

- age, and within

- three

- years and overrule appellant ’ s first issue.9

“ Backdoor ” Hearsay

In his second issue, appellant ar gues that the trial court abu sed i ts d is cretion by
adm itting “ backdoor ” he a rsay
. See Tex. R. Evid. 801 ( def ining hearsay), 802 (stating that hearsay generally is not admissible ). He ar gues that the trial court should not have allow ed the detective to testify that C.F. t old him that sh e told a ppellant th at she was fourteen yea rs of age

. A ppellant, however , “ co ncedes that [any harm from] t his issue is predicated on a favor able finding ” by this Court on his f irst issue. As we ex plained abov e, for the offense cha rged in the indictment, the State was not required to pr o v e a cu lpable m ental state as t o C. F. ’ s ag e
. See Fleming , 455 S.W.3d at 582

. Thus, even if the trial court abused its di scretion in allowing this testimony , appellant has not show n harm. See Tex. R. App. P. 44.2(b) (s tating that

non co n stitutional error requires reversal only if it affects s ubst ant ial rights of accused) ; Tex. R. Evid. 103 ( stating that trial court error admitting or excluding evidence must affect “ substantial right of the p arty ” ) ; see also Solomon v. State , 49 S.W.3d 35 6, 365 (Tex. Crim. App. 2001) (explaining that e rroneous admi ssi on of evidence i s non constit utional error). We overrule appellant ’ s second issue.

Conclusion

Having overrul ed appellant ’ s issue s , we affir m the ju dgment of conviction.10 _______________ ___________________ ______ __ Melissa Goodwin , Justice
Before Justices Goodwin, Baker, and Ke lly
Affirmed
Filed: November 20, 2020
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