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 PRESIDING

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. See Tex. Penal Code § 22.011(a)(2)(A) (stating that person 

commits offense if person “intentionally or knowingly . . . causes the penetration of the anus or 

sexual organ of a child by any means”), (c)(1) (defining “child” to mean “person younger than 

17 years of age”). The evidence at trial was undisputed that appellant had sexual intercourse

with C.F. when he was eighteen years of age and she was fourteen years of age. Raising two 

issues, appellant argues that the trial court erred by refusing to submit jury instructions on the 

affirmative defenses of: (i) mistake of fact, see id. § 8.02; (ii) mistake of age; and (iii) that “the 

actor was not more than three years older than the victim,” see id. § 22.011(e)(2). He further 

argues that the trial court abused its discretion by admitting “backdoor” hearsay. For the 

following reasons, we affirm the trial court’s judgment of conviction.
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Background

The State indicted appellant for the offense of sexual assault of a child, alleging

that on September 28, 2016, appellant:

did then and there intentionally and knowingly cause the penetration of the sexual 

organ of [C.F.], a child who was then and there younger than 17 years of age, by 

the defendant’s sexual organ. 

See id. § 22.011(a)(2)(A), (c)(1).

The jury trial occurred in October 2018. In the guilt-innocence phase, the State’s 

witnesses were C.F., who testified about her sexual encounter with appellant; her father, who 

testified about discovering what happened and reporting it to the police; and an officer and 

investigator with the Temple Police Department, who testified about their investigation of 

C.F.’s complaint. The evidence was largely undisputed. C.F. testified that she was born on

April 26, 2002, and that she met appellant online in 2016 by messaging him. When they first 

started talking, C.F. was fourteen years of age, but she testified that because she was “about to be 

15,” she “probably told [appellant] [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 appellant was eighteen and C.F. was fourteen. On that occasion, C.F. invited appellant to 

her house, and they had sexual intercourse in her bedroom. After that, they continued talking

online and, a few weeks later, appellant drove over to C.F.’s house. This time, they stayed 

outside in appellant’s vehicle until C.F.’s father came out of the house. They then drove down 

the street, C.F. got out of the vehicle, and returned to her home. After her father confronted her
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about “where [she] was” and “what happened,” C.F. told her father that she previously had sex 

with appellant. Her father contacted the police.

The investigator interviewed C.F. and appellant, who gave a voluntary statement

that the investigator typed and appellant signed. In his statement, appellant confirmed that he 

was born on April 21, 1998, and stated that, before he graduated from high school in 2016, he 

met C.F. online and they “became friends,” 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 found out, C.F. told appellant

that she was sixteen years of age but that her father was going to the police because appellant

was “over age.” Appellant’s statement and a DVD recording of appellant’s interview were

admitted as exhibits at trial.

The trial court denied appellant’s requested jury instructions that would have

allowed the jury to consider whether he had a “reasonable mistake of fact regarding the 

difference in the complainant’s and his age” and the “within-three-years affirmative defense

without a mistake of fact” based on C.F.’s “testimony that she represented her age in 2016 as 

being 15.” See id. §§ 8.02, 22.011(e)(2). The jury found appellant guilty and, after hearing 

additional testimony during the trial’s punishment phase, assessed his punishment at confinement 

of three years and recommended community supervision. The trial court entered judgment

consistent with the jury’s verdict, suspending imposition of the sentence and placing appellant on 

community supervision for three years. This appeal followed.
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Analysis

Jury Charge

In his first issue, appellant argues that the trial court erred by refusing to submit a 

mistake-of-fact instruction to the jury regarding the within-three-years affirmative defense 

provided by section 22.011(e)(2) or a mistake-of-age instruction 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, 22.011(e)(2).

Standard of Review

We review alleged jury charge error in two steps: first, we determine whether 

error exists; if so, we then evaluate 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 harm 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. 

Crim. App. 1985) (op. on reh’g) (setting forth procedure for appellate review of claim of 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 defendant.” Marshall, 

479 S.W.3d at 843.

“A defendant is entitled to an instruction on any defensive issue raised by the 

evidence, whether that evidence is weak or strong, unimpeached or uncontradicted, 

and regardless of how the trial court views the credibility of the defense.” Celis v. State, 

416 S.W.3d 419, 430 (Tex. Crim. App. 2013) (citing Allen v. State, 253 S.W.3d 260, 267 (Tex. 
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Crim. App. 2008)). “However, ‘[t]he issue of the existence of a defense is not submitted to the 

jury unless evidence is admitted supporting the defense.’” Kuhn v. State, 393 S.W.3d 519, 532 

(Tex. App.—Austin 2013, pet. ref’d) (quoting Tex. Penal Code § 2.03(c)). “Therefore, if the 

evidence, when viewed in the light most favorable to the defendant, does not establish the 

defense, the defendant is not entitled to an instruction 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 rational jury finding as to each element of the defense.” Shaw v. State, 243 S.W.3d 647, 658

(Tex. 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 its own common sense and experience, as 

to the limits of rational inference from the facts proven.” Id.

Guided by these standards, we turn to appellant’s complaints about the 

jury charge.

Requested Defensive Instructions

Section 22.011(e)(2) provides an affirmative defense to the offense of sexual 

assault in subsection (a)(2) if “the actor was not more than three years older than the victim” at 

the time of the offense and the victim “was a child of 14 years of age or older.” Tex. Penal Code

§ 22.011(e)(2). Further, “[i]t is a defense to prosecution that the actor through mistake formed a 

reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability 

required for commission of the offense.” Id. § 8.02(a).

Appellant argues that he reasonably believed that C.F. was less than three years

younger than him and, therefore, that he was entitled to the statutory mistake-of-fact jury 

instruction regarding the affirmative defense provided by section 22.011(e)(2) of the Penal Code. 
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Appellant argues that the mistake-of-fact defense should apply to all elements of an offense

brought under subsection (a)(2)—specifically, that it should apply to the victim’s age. See id.

§ 22.011(a)(2), (e)(2). He further argues that he was entitled to a mistake-of-age instruction as a 

matter of due process.

However, the State did not have to prove a culpable mental state as to C.F.’s age

to prove the elements of the offense of sexual assault of a child under section 22.011(a)(2). See 

Fleming v. State, 455 S.W.3d 577, 582 (Tex. Crim. App. 2014) (explaining that section 

22.011(a)(2) of Penal Code does not require culpability as to age of victim). Thus, a mistaken 

belief about a complainant’s age does not negate the “kind of culpability required for 

commission of the offense.” See id. (“Because Section 22.021 requires no culpability as to the 

age of the victim, there 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).

Appellant acknowledges that the Texas Court of Criminal Appeals “has 

previously rejected [the same] arguments” that he makes as to this issue. See Fleming, 

455 S.W.3d at 580–83; see also Celis, 416 S.W.3d at 430–31 (describing current law applicable 

to mistake-of-fact defense and reaffirming that mistake-of-fact instruction “is limited to any

culpable mental state required for the offense”). Despite this precedent, appellant “urges this 

Court to take the first step for the Court of Criminal Appeals to reconsider its prior decisions on 

this issue.” As support, appellant cites separate writings by Judges of the Court of Criminal 

Appeals that, according to appellant, show that they “have been sharply divided” on this issue;

the high court’s change in composition; a law review article; a 2017 amendment to section 
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21.011(a)(2)1; and Lawrence v. Texas, 539 U.S. 558 (2003). See, e.g., Fleming, 455 S.W.3d at

589 (Keller, P.J., dissenting) (stating that she “would hold that, after Lawrence v. Texas, in a 

limited number of child sex cases, due process requires the submission of an affirmative defense 

of reasonable mistake of age”); id. at 583 (Cochran, J., concurring) (stating belief that “Texas 

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

“reluctantly” joining majority opinion and recognizing that her belief “is not a current state of 

the law in Texas”); Arnold H. Loewy, Statutory Rape in a Post Lawrence v. Texas World, 

58 SMU L. Rev. 77 (2005).

But “as an intermediate appellate court, we must follow the binding precedent of 

the Court of Criminal Appeals.” Gonzales v. State, 190 S.W.3d 125, 130 n.1 (Tex. App.—

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

Fort Worth 1999, no pet.) (“Because a decision of the court of criminal appeals is binding 

precedent, we are compelled to comply with its dictates.”). Following this precedent, we cannot 

conclude that the trial court erred by refusing appellant’s requested jury instructions for mistake 

of fact or mistake of age, which were based on the evidence about his belief that he was not more 

than three years older than C.F. See Fleming, 455 S.W.3d at 580–83; see also Arias v. State, 

503 S.W.3d 523, 531 (Tex. App.—San Antonio 2016, pet. ref’d) (following Fleming decision 

and holding that “section 22.011(a)(2)(C) is not unconstitutional for failing to require the State to 

prove the defendant had a culpable mental state regarding the victim’s age or for failing to 

contain a mistake-of-fact defense as to the age of the victim”); Ford v. State, 488 S.W.3d 350, 

1 Section 22.011(a)(2) of the Penal Code was amended in 2017 to add the underlined

phrase: “A person commits an offense if: . . . regardless of whether the person knows the age of 

the child at the time of the offense, the person intentionally or knowingly . . .” See Act of

May 26, 2017, 85th Leg., R.S., ch. 1038, § 6, 2017 Tex. Gen. Laws 4072, 4074 (effective 

Sept. 1, 2017).
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352 (Tex. App.—Beaumont 2016, no pet.) (declining “to revisit the issues addressed by the 

Court of Criminal Appeals in Fleming” and holding that section 22.011(a)(2) “is not 

unconstitutional—under either the Due Process Clause of the Fourteenth Amendment 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 failing to contain or 

recognize a mistake-of-fact defense as to the age of the victim”).

To the extent that appellant also is arguing that he was entitled to an instruction 

on the within-three-years defense contained in section 22.011(e)(2) based on the evidence, we 

similarly cannot conclude that the trial court erred by refusing to submit an instruction on this 

ground. Although there was evidence that C.F. told appellant that she was fifteen or sixteen

years of age, the applicability of the within-three-years defense is predicated on the actual age 

difference between a defendant and a child. See Tex. Penal Code § 22.011(e)(2). Here, the 

evidence was undisputed that the difference between appellant’s and C.F.’s actual ages was more

than three years when they had sexual intercourse. Thus, the evidence did not raise this defense.

See Shaw, 243 S.W.3d at 658 (explaining that “evidence must be such that it will support a 

rational jury finding as to each element of the defense”); Kuhn, 393 S.W.3d at 532 (explaining 

that “[t]he issue of the existence of a defense is not submitted to the jury unless evidence is 

admitted supporting the defense” (quoting Tex. Penal Code § 2.03(c)).

For these reasons, we conclude that the trial court did not err by refusing to 

submit appellant’s requested jury instructions as to the defenses of mistake-of-fact, 

mistake-of-age, and within-three-years and overrule appellant’s first issue.
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“Backdoor” Hearsay

In his second issue, appellant argues that the trial court abused its discretion by 

admitting “backdoor” hearsay. See Tex. R. Evid. 801 (defining hearsay), 802 (stating that 

hearsay generally is not admissible). He argues that the trial court should not have allowed the 

detective to testify that C.F. told him that she told appellant that she was fourteen years of age.

Appellant, however, “concedes that [any harm from] this issue is predicated on a favorable 

finding” by this Court on his first issue. As we explained above, for the offense charged in the 

indictment, the State was not required to prove a culpable mental state as to C.F.’s age. See 

Fleming, 455 S.W.3d at 582. Thus, even if the trial court abused its discretion in allowing this 

testimony, appellant has not shown harm. See Tex. R. App. P. 44.2(b) (stating that 

nonconstitutional error requires reversal only if it affects substantial rights of accused); Tex. R. 

Evid. 103 (stating that trial court error admitting or excluding evidence must affect “substantial 

right of the party”); see also Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) 

(explaining that erroneous admission of evidence is nonconstitutional error). We overrule 

appellant’s second issue.

Conclusion

Having overruled appellant’s issues, we affirm the judgment of conviction.
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__________________________________________

Melissa Goodwin, Justice

Before Justices Goodwin, Baker, and Kelly

Affirmed

Filed: November 20, 2020

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