## NUMBER 13 - 19 - 00 6 01 - C R COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

– EDINBURG

FRANCISCO EZEQUIEL LOPEZ, Appellant ,
v . THE STATE OF TEXAS, Appellee.

On appeal from the 206th District Court of Hidalgo C ounty, Texas.



## MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Tijerina

Memorandum Opinion by Justice Benavides A jury convicted a ppellant Francisco Ezequiel Lopez of continuous sexual abuse of a child (Count One ) , aggravated sexual assault of a child (Count Two ) , and indecency with a child (Count Three )

. See T EX

. P ENAL C ODE A NN

. §§ 21.02, 21.11, 22.021

. By three2

issues, which we have reordered, 1 Lopez contends tha t : (1) the evidence was legally insufficient to support his convictions ; (2) he was egregiously harmed by jury charge error with respect to Count One ; and (3) h is conviction for Count Two violate d his double

jeopardy rights under the United States and Texas Constitutions. 2 We affirm the judgments for Count One and Count T hree as modified and vacate the judgment for Count
T wo

. I. B ACKGROUN D Lopez was indicted for committing three sexual offenses against his stepdaughter Mary 3 while she was under the age of fourteen

. Count One alleged that “from on or about the 1st day of September, 2017 through on or about the 23rd day of August, 2018, ” Lopez committed two or more act s of se xual abuse against Mary, “namely aggravated sexual assault of a child and ind ecency with a child by contact.” Count T wo alleged that “o n or about August 24, 2018,” Lopez committed aggravated sexual assault against Mary by intentionally penetrating her sexual organ with his sexual organ. Count Three alleged that “on or about the 1st day of January, 2018,” Lopez engaged in sexual contact wi th Mary

1 We address Lopez’s issues in the order that would provide him the greatest relief. See Lopez v. State , 615 S.W.3d 238, 248 (Tex. App.

— El Paso 2020, pet. ref’d) (citing Benavidez v. State , 323 S.W.3d 179, 182 (Tex. Crim. App. 2010)).

2 Although he initially identifies them as separate issues, Lopez acknowledges in his brief that his argument under the Texas Constitution is redundant because the United States Consti tution provide s the same double

- jeopardy protect ions in this case

. See Ex parte Mitchell , 977 S.W.2d 575, 580 ( Tex. Crim. App. 1997) (reiterating “that the Texas and United States constitutions’ double jeopardy provisions provide substantially identical protections ” ). Accordingly, we treat Lopez’s federal and state double

- jeopardy contention s as a single issue.

3 T o protect the minor complainant’s identity, the pseudonym “Maria Garza” was used in the indictment. However, the parties both use the pseudonym “Mary” in their briefs. To avoid confusion, we will also refer to the complainant as “Mary.” See T EX

. R. A PP

. P. 9.8 cmt. (West 2008) (“This rule does not limit an appellate court’s authority to disguise parties’ identities in appropriate circumstances in other cases.”) ; Salazar v. State , 562 S.W.3d 61, 63 n.1 (Tex. App.

— Corpus Christi

– Edinburg 2018, no pet.).3

by touching her breast with the intent to arouse or satisfy his sexual desire. Mary, twelve years old at the time of trial, testified that Lopez began sexually abus ing her i n “fourth or fifth grade , ” when she was “9 or 10” years old. Typically, Lopez would “put his penis inside [her] v agina.” She coul d not remember exactly how many times this occurred but said that it happened “a lot , ” both on the living room cou ch and o n her bed. Sometimes her mother was not home, and other times she was in an adjacent

room. The last time “was the da y before the first day of sixth grade , ” which began “[t]he last week of August 2018 , ” when Mary was eleven years old. Mary remembered this incident specifically because afterwards Lopez helped her get a cellphone. After previous assaults , Lopez would “randomly” give Mary money. In addition to penetrating her sexual organ with his penis, Mary testified that Lopez would place his hands “under” her bra and touc h her “ breasts

. ” Lopez also use d the “palm of his hands” to “rub against” her “ vagina .” This occurred “both” over and under he r clothing. The abuse stopped because Mary told two of her friends, and they in turn reported it to a school counselor. Initially, Mary was not forthcoming about the extent of the abuse. She explained that she “felt guilty” and “didn’t want to tear the family apart.” Mary also felt conflicted because, despite the abuse, she “had a very close bond with [Lopez] , ” and he was otherwise “a good dad.” The jury convicted Lopez on all three count s and assessed his punishment at
t h irty

- five years ’ confinement on Count One, twenty years’ confinement on Count Two,4

and ten years’ confinement on Count Three. The trial court ordered that the sentences be served consecutively, beginning with Count One and ending with Count Three

. This appeal ensued.
I I

. S UFFICIENCY OF THE E VIDENCE By his first issue, Lopez challenges the sufficiency of the evidence to support his convictions.
A. Standard of Review & Applicable Law
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 .” Hammac k v. State , 622 S.W.3d 910, 914 (Tex. Crim. App. 2021) (citing Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) ). Because t he jury is the trier of fact , w e “must defer to the jury’s credibility and weight determinations. ” Id. This includes resolving conflicts in the testimony. Carter v. State , 620 S.W.3d 147, 149 (Tex. Crim. App. 2021) (citing Jackson v. Virginia , 443 U.S. 307, 319 (1979)).
B. Analysis
R ather than contest ing any particular element of each offe nse , Lopez generally attacks Mary’s credibility. A ccording to Lopez, “Mary told so many lies throughout the process, it follows that nothing she says can be believed or relied upon to uphold the verdicts and resulting convictions in this case.” This is the extent of his sufficiency challenge.
I t is well

- established , however, that the jury is the “sole judge” of a witness’s5

credibility and the weight to be given to her testimony. Hammack , 622 S.W.3d at 914 (quoting Garcia v. State , 367 S.W.3d 683, 687 (Tex. Crim. App. 2012) ). We may not , as Lopez implicitly suggests, substitute our judgment for that of the factfinder. Thornton v. State , 425 S.W.3d 289, 303 (Tex. Crim. App. 2014)

. C ontrary to Lopez’s aspersion s , the jury clearly found Mary credibl e

. See Hernandez v. State , 610 S.W.3d 106, 111 (Tex. App.

— Houston [14th Dist.] 2020, pet. ref’d) (noting that in a sufficiency review, “ we presume that the jury credited the complainant’s testimony”). Moreover , Mary’s testimony alone wa s sufficient to support Lopez’s convictions. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 38.07 ; Bautista v. State , 605 S.W.3d 520, 525 (Tex. App.

— Houston [14th Dist.] 2020, no pet.) (“[T] he uncorroborated testimony of a child seventeen years of age or younger is sufficient to support a conviction for aggravated sexual assault of a child. ”). Accordingly, Lopez’s first issue is overruled.
I I I. J URY C HARGE E RROR Lopez next argues that the jury charge for Count One contained “an illegal application paragraph” because it permitted the jury to convict him for conduct that does
not constitute an act of sexual abuse

— namely, sexual contact with Mary’s breast s

. A. Standard of Review & Applicable Law
A jury charge must instruct the jurors on the law that is applicable to the case. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 36.14 . “Because the charge is the instrument by which the jury convicts, it must contain an accurate state ment 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 an6

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) (citing Plata v. State , 926 S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other gr ounds by M

alik v. State , 953 S.W.2d 234 (Tex. Crim. App. 1997)). “ 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)

. 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 , like here, an appellant fails to timely object to the jury charge, a reviewing court will only reverse upon a showing of egregious harm

. Chambers v. State , 580 S.W. 3d 149, 154 (Tex. Crim. App. 2019) . “ 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. ” Villarreal v. State , 453 S.W.3d 429, 433 (Tex. Crim. App. 2015) (citing Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g) , superseded on other grounds by rule stated in Rodriguez v. State , 758 S.W.2d 787, 788 (Tex. Crim. App. 1988) ). Essentially , egregious harm occurs when the appellant i s deprived of a fair and impartial trial. Chambers , 580 S.W.3d at 154 (citing Villarreal , 453 S.W.3d at 433). A “ high and difficult standard ” to meet, egregious harm must be evident from the record “rather than theoretical

. ” Villarreal , 453 S.W.3d at 433 ( first quoting Reeves v. State , 420 S.W.3d 812, 816 (Tex. Crim. App. 2013) ; and then quoting Cosio v. State , 353 S.W.3d 766, 7777

(Tex. Crim. App. 2011 ) )

. In making this determination, w e consider : “ (1) the entirety of the jury charge, (2) the state of the evidence, including the contested issues and weight of probative evidence, (3) the arguments of counsel, and (4) any other relevant information revealed by the trial record as a whole. ” Id. (citing Almanza , 686 S.W.2d at 171).
B. Analysis The jury was provided with a separate jury charge for each count . As to Count One , t he abstract portion accurately defined “act of sexual abuse” to include the predicate offense of indecency with a child by sexual contact “ other than by touching, including touching through clothing, the breast of a child.” See T EX

. P ENAL C ODE A NN

. § 21.02 (c)(2). The abstract portion also accurately defined “ indece ncy with a child ” as engaging in “sexual contact” with a child, which includes “any touching, including tou c hing through clothing, of the anus, breast, or any part of the genitals o f a child.” See id. § 21.11 (a)(1), (c)(1). The application p aragraph then asked the jury to consider whether the evidence proved beyond a reasonable doubt that during the requisite period Lope z “committed two or more acts of sexual abuse against M ary

. . . , namely aggravated sexual assault of a child and indecency with a child .” The application paragraph did not state that the indecency offense(s) must have been committed by means “other than by touching, including touching through the clothing, the breast of a child.” Se e id. § 21.02(c)(2). Lopez acknowledges that we must consi der the charge in its entirety, and he does not dispute that the abstract portion accurately defined the relevant terms. Nonetheless, he contends that the abstract portion “would only be confusing to the jury because it directly conflicts” with the applica tion paragraph . According to Lopez , the application8

paragraph was “illegal” because it failed to explicitly exclude touching Mary’s breast as a predicate offense. We disagree. Lopez’s interpretation of the jury charge selectively focuses on the definition of “indecency with a child” but ignores the definition of “acts of sexual abuse , ” which properly limit ed the types of sexual contact the jury could consider. A jury charge must be considered in its entirety , and here , t he a pplication paragraph necessarily require d the jur y to refer to and incorporate both definition s into the application paragraph

. See Vasquez , 389 S.W.3d at 366 , 367 (explaining that an application paragraph authorize s a conviction where it “necessarily and unambiguously” refers to another paragraph in the jury charge )

. Thus, the application paragraph correctly authorized Lopez’s conviction for continuous sexual assault of a child if , during the requisite period, he com mitt ed two or

more acts of sexual abuse , including sexual contact with Mary , other than by touching her breast

. See T EX

. P ENAL C ODE A NN

. § 21.02(c)(2). The jury charge did not contain error. Even if we were to conclude the charge was erroneous, Lopez has not shown that he suffered egregious harm. T o the extent that the jury charge for Count One was “confusing,” as Lopez suggests, any such concerns were ameliorated by other factors.
B oth the State and Lopez stressed during closing that evidence of Lopez touch ing Mary ’s breast could only be considered in deciding Count Three

. 4 This point was reinforced by

4 For example, the State told the jury : Now, in continuous, the most serious one, the Count 1 that we talked about, breast touching doesn’t count. Okay. That’s a separate count. That’s for Count 3. The b reast touching [Mary] talked about with his hands rubbing on her breast under her clothes, un der her little bra, that’s Count 3. You don’t consider that part in continuous because continuous, as I said, is the most serious one, and th at’s the penis penetrating the vagina and the touching [ of her] vagina with his hand

. . . .9

th e fact that Count Three had a separate jury charge with an application paragraph that , unlike Count One, asked the jury to determine whether the evidence proved beyond a reasonable doubt that, on or about January 1, 2018, Lopez engaged in sexual contact with Mary by touching her breast with the intent to arouse or gratify his sexual desire

. This was distinct from the State’s theory of Count On e
— namely, that in addition to penetrating her vagina with his penis, Lopez engaged in sexual contact with Mary by touching her

v agina with his hand

. Con sider ing the entire trial record, including the se parate jury charges , the state of the evidence, and the arguments of counsel , Lopez has not shown that he suffered actual harm. See Villarreal , 453 S.W.3d at 433 ; Almanza , 686 S.W.2d at 171. H is second issue is overruled.
I V

. D OUBLE J EOPARDY Finally, Lopez contends that his conviction under Count Two for aggravated sexual assault violated his double

- jeopardy rights because it was a predicate offense under Count One that occurred during the period of continuous sexual abuse.
A. Standard of Review & 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. C ONST

. amends. V, XIV; Garfias v. State , 424 S.W.3d 54, 58

. . . . And then we get to Count 3, indecency with a child [by] sexual contact, with the intent to arouse or gratify the sexual desire of the defendant. The child was younger than 17, and he did that by touching the breast of the child. This is where the breast part comes in. You can’t use if for Count 1, but it’s its own separate offense, Count 3.10

(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 o ffenses 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)

.

“ To 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 v. State , 636 S.W.3d 646, 651 (Tex. Crim. App. 2021) (citing T EX

. P ENAL C ODE A NN

. § 21.02(b))

. A ggravated sexual assault of a child is among the predicate offenses listed as “ act s of sexual abuse

. ” T EX

. P ENAL C ODE A NN

. § 21.02(c). Dual convictions for contin uous sexual abuse and a predicate offense are prohibited under certain circumstances. Id. at § 21.02(e). “ 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 vi ctim 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) (interpreting § 21.02(e)) . In other words, “ 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 Here, the period of continuous sexual abuse alleged in the indictment was from on11

or about September 1, 2017, to on or about August 23, 2018, and the aggravated sexual assault was alleged to have been committed the following day, on August 24, 2018. According to the State, the period of continuous abuse alleged in the indictment is controlling, and thus Lopez’s conviction under Count Two was allowed because it occurred during a different period of time

. The Texas Court of Criminal Appeals recently rejected the St ate’s approach, holding that the period alleged in the indictment was irrelevant. See Allen v. State , 620 S.W.3d 915, 921 (Tex. Crim. App. 2021). Instead, we determine the period of continuous abuse “by looking at the evidence presented at trial.” Id. As guidance on what may constitute “a different period of time,” the Texas Court of Criminal Appeals suggested that there would need to be “ a clear period of continuing abuse, and, after several years during which no abuse occurred , an isolated incident of abuse. ” Id. at 922 n.9

. T he State’s attempt to separate , by a single day, the last aggravated sexual assault from the period of continuous sexual abuse is not supported by the evidence

. Mary testified that Lopez continuously subjected her to acts of sexual abuse f rom the time she

was in the “fourth or fifth grade” until “the da y before the first day of sixth grade , ” saying it happ ened “a lot.” At no point did Mary, or anyone else, testify about a prolonged break in the abuse. Thus, r ather than occurring in a separate period , the aggravated sexual assault was the final act of sexual abuse that occurred during the period of continuous abuse. Consequently , Lopez’s dual conviction s under Count One and Count Two violated § 21.02(e) and hi s constitutional rights

. See U.S. C ONST . amend. V, XIV; T EX

. P ENAL C ODE A NN

. § 21.02(e); Allen , 620 S.W.3d at 921 ; Price , 434 S.W.3d at 606 ; Cisneros v. State ,12

622 S.W.3d 511, 519 (Tex. App

. — Corpus Christi

– Edinburg 2021, no pet.) (op. on remand) (holding that dual convictions for aggravated sexual assault and continuous sexual abuse violated § 21.02(e) and appellant’s constitutional rights because the sexual assaults occurred during the period of continuous abuse )

. Lopez’s third issue is sustained

. Generally, when a defendant is convicted in a single criminal trial of two offenses that are considered the same for double jeopardy purposes, the remedy is to retain the conviction for the “most serious offense” and vacate the other conviction. Bien v. State , 550 S.W.3d 180, 188 (Tex. Crim. App. 2018). The “most serious offense” is the one for which the “greatest sentence was assessed.” Id. (quoting Ex parte Cavazos , 203 S.W.3d 333, 338 (Tex. Crim. App. 2006) )

. Because Lopez was asses sed a greater sentence for Count One, we retain the conviction for Count One and vacate the conviction for Count Two. See id. Each conviction was memorialized in a separate written judgment ; therefore, the judgment for Count Two is vacated. Additionally, each judgment contains the following language: “ The sentence imposed in Count One shall begin immediately. The sentence in Count Two shall begin when the judgment imposed in Count One has ce ased to operate. The sentence in Count Three shall begin when the judgment imposed in Count Two has ceased to operate.” At the State’s request, we modify the ju dgments for Count One and Count T hree as follows: “The sentence imposed in Count One shall begin immediately. The sentence in Count Three shall begin when the judgment imposed in Count One has ceased to operate.”13 V

. C ONCLUSION We affirm the judgments for Count One and Count Three as modified and reverse

a nd render a judgment vacat ing the judgment for Count Two.

GINA M. BENAVIDES Justice
Do not publish. T EX . R. A PP . P. 47.2(b). Delivered and filed on the 11th day of August , 202 2

.