NUMBER 13-19-00601-CR

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 County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Tijerina

Memorandum Opinion by Justice Benavides

A jury convicted appellant 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 TEX. PENAL CODE ANN. §§ 21.02, 21.11, 22.021. By three 
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issues, which we have reordered,1 Lopez contends that: (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) his conviction for Count Two violated his doublejeopardy rights under the United States and Texas Constitutions. 2 We affirm the 

judgments for Count One and Count Three as modified and vacate the judgment for Count 

Two.

I. BACKGROUND

Lopez was indicted for committing three sexual offenses against his stepdaughter 

Mary3 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 acts of sexual abuse against Mary, “namely aggravated sexual 

assault of a child and indecency with a child by contact.” Count Two alleged that “on 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 with 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 Constitution provides the 

same double-jeopardy protections 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 

contentions as a single issue.

3 To 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 TEX. R. APP. 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.).
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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 

abusing her in “fourth or fifth grade,” when she was “9 or 10” years old. Typically, Lopez 

would “put his penis inside [her] vagina.” She could not remember exactly how many 

times this occurred but said that it happened “a lot,” both on the living room couch and on 

her bed. Sometimes her mother was not home, and other times she was in an adjacent

room.

The last time “was the day 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 touch her “breasts.” Lopez also used the “palm 

of his hands” to “rub against” her “vagina.” This occurred “both” over and under her

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 counts and assessed his punishment at 

thirty-five years’ confinement on Count One, twenty years’ confinement on Count Two, 
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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.

II. SUFFICIENCY OF THE EVIDENCE

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.” Hammack 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 the 

jury is the trier of fact, we “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

Rather than contesting any particular element of each offense, Lopez generally 

attacks Mary’s credibility. According 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.

It is well-established, however, that the jury is the “sole judge” of a witness’s 
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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).

Contrary to Lopez’s aspersions, the jury clearly found Mary credible. 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 was sufficient to support 

Lopez’s convictions. See TEX. CODE CRIM. PROC. ANN. 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.

III. JURY CHARGE ERROR

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 breasts.

A. Standard of Review & Applicable Law

A jury charge must instruct the jurors on the law that is applicable to the case. TEX.

CODE CRIM. PROC. ANN. art. 36.14. “Because the charge is the instrument by which the 

jury convicts, it must contain an accurate statement 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 an 
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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 grounds by Malik

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 is 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, 777 
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(Tex. Crim. App. 2011)). In making this determination, we 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, the 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 TEX. PENAL CODE ANN. § 21.02(c)(2). 

The abstract portion also accurately defined “indecency with a child” as engaging in 

“sexual contact” with a child, which includes “any touching, including touching through 

clothing, of the anus, breast, or any part of the genitals of a child.” See id. § 21.11(a)(1), 

(c)(1). The application paragraph then asked the jury to consider whether the evidence 

proved beyond a reasonable doubt that during the requisite period Lopez “committed two 

or more acts of sexual abuse against Mary . . . , 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.” See id. § 21.02(c)(2).

Lopez acknowledges that we must consider 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 application paragraph. According to Lopez, the application 
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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 

limited the types of sexual contact the jury could consider. A jury charge must be 

considered in its entirety, and here, the application paragraph necessarily required the 

jury to refer to and incorporate both definitions into the application paragraph. See

Vasquez, 389 S.W.3d at 366, 367 (explaining that an application paragraph authorizes 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 committed two or 

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

breast. See TEX. PENAL CODE ANN. § 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. To the extent that the jury charge for Count One was 

“confusing,” as Lopez suggests, any such concerns were ameliorated by other factors. 

Both the State and Lopez stressed during closing that evidence of Lopez touching 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 breast touching 

[Mary] talked about with his hands rubbing on her breast under her clothes, under 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 that’s the penis penetrating the vagina and the touching 

[of her] vagina with his hand . . . .
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the 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 One—namely, that in addition to penetrating 

her vagina with his penis, Lopez engaged in sexual contact with Mary by touching her 

vagina with his hand. 

Considering the entire trial record, including the separate 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. His second issue 

is overruled.

IV. DOUBLE JEOPARDY

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. CONST. 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.
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(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 offenses 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 TEX. PENAL CODE ANN. § 21.02(b)). 

Aggravated sexual assault of a child is among the predicate offenses listed as “acts of 

sexual abuse.” TEX. PENAL CODE ANN. § 21.02(c).

Dual convictions for continuous 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 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.” 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 on 
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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 State’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.

The 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 from the time she 

was in the “fourth or fifth grade” until “the day before the first day of sixth grade,” saying 

it happened “a lot.” At no point did Mary, or anyone else, testify about a prolonged break 

in the abuse. Thus, rather 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 convictions under Count One and Count Two violated 

§ 21.02(e) and his constitutional rights. See U.S. CONST. amend. V, XIV; TEX. PENAL CODE 

ANN. § 21.02(e); Allen, 620 S.W.3d at 921; Price, 434 S.W.3d at 606; Cisneros v. State, 
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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 assessed 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 ceased 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 judgments for Count 

One and Count Three 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.”
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V. CONCLUSION

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

and render a judgment vacating the judgment for Count Two.

GINA M. BENAVIDES

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed on the

11th day of August, 2022.