Opinion issued November 26, 2019

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-18-00442-CR

———————————

OTONIEL GUZMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 432nd District Court

Tarrant County, Texas

Trial Court Case No. 1540453R

O P I N I O N

A jury convicted appellant, Otoniel Guzman, of the first-degree felony offense 

of continuous sexual abuse of a young child and assessed his punishment at thirty 
2

years’ confinement.1In six issues, appellant contends that the trial court erred by 

(1) allowing the testimony of the complainant’s grandmother as an outcry witness; 

(2) overruling his motion for mistrial after the complainant’s grandmother 

commented on his right to remain silent; (3) denying his request for a writ of 

attachment for a prospective juror who did not appear for voir dire; (4) allowing him 

to be tried under a statute that is unconstitutional because it does not require an 

unanimous jury to convict a defendant for the offense of continuous sexual abuse; 

and (5) and (6) refusing his requested jury instruction on the lesser-included offenses

of indecency with a child by exposure and indecent exposure.

We affirm.

Background

Appellant and Ninfa Castillo were married. Castillo has three adult daughters 

from a previous marriage, and her oldest daughter has three children including 

Jessica,2the complainant, who was born in March 2001, and Jessica’s two younger 

brothers. Castillo and appellant obtained custody of Jessica and her siblings when 

Jessica was around six years old. Castillo, appellant, Jessica, and her younger 

 

1 See TEX. PENAL CODE ANN. § 21.02(b).

2

In this opinion, we use the pseudonym “Jessica” for the complainant to protect her 

privacy.
3

brothers all lived together in a mobile home in Arlington, Texas.3Jessica had her 

own bedroom. She was seventeen years old at the time of trial.

Appellant is not biologically related to Jessica or her brothers. Castillo 

testified that appellant favored Jessica over her brothers and that he would take her 

shopping and buy her things, but he would not do so for her brothers. According to 

Castillo, appellant would spoil Jessica, including buying her expensive phones and 

giving her significantly more money at Christmas than he would give to her brothers. 

Appellant would allow Jessica’s brothers to spend the night with friends, but he 

would rarely let Jessica do so with her friends. During summer vacations, Jessica 

and her brothers would spend around two months in San Antonio with their father’s 

sister. Castillo testified that appellant did not mind Jessica’s brothers being away 

from home for that length of time, but he did not want Jessica to be gone for so long, 

and he would offer to drive to San Antonio to bring her home. Castillo stated that 

she spoke with appellant about his preferential treatment of Jessica, but appellant 

denied that anything untoward was happening with Jessica. Castillo had no 

indication that an inappropriate relationship existed between appellant and Jessica.

 

3 The Texas Supreme Court transferred this appeal from the Court of Appeals for the 

Second District of Texas to this Court pursuant to its docket-equalization authority. 

See TEX. GOV’T CODE ANN. § 73.001 (“The supreme court may order cases 

transferred from one court of appeals to another at any time that, in the opinion of 

the supreme court, there is good cause for the transfer.”).
4

Appellant and Castillo had different work schedules. Appellant worked in 

construction and was frequently out of town on various jobs. When he was in 

Arlington, he typically worked from around 7:00 a.m. until 5:30 p.m. Castillo, 

meanwhile, worked the night shift at PolyAmerica and typically worked from 5:30 

p.m. until 5:30 a.m., six days per week. Appellant would supervise the children while 

Castillo was at work.

On September 27, 2015, Castillo arrived home from work around 6:00 a.m. 

Appellant was asleep in their bedroom, and she was surprised to see him because he 

had been working out of town and was not supposed to be home until the following 

weekend. Castillo went to sleep on the living room sofa and woke up around 10:00 

a.m. She saw appellant leave the house, and she went back to sleep. She called 

appellant about an hour later, and appellant said that he was not coming home 

anymore. He told Castillo, “I’m not returning home before you lock me up.” Castillo 

did not know what appellant meant by this, and appellant refused to explain.

While Castillo was still sitting on the sofa, Jessica walked into the living room, 

crying. When Castillo asked her why she was crying, Jessica told her that appellant 

had tried to touch her vagina and her breasts the previous evening. Jessica told 

Castillo that this happened in her bedroom while Castillo was at work. She tried to 

kick appellant away and she was screaming, and appellant left her bedroom but later 

came back and “tried to do it again.” Castillo testified that this allegation surprised 
5

her, and she asked Jessica what she wanted to do. Jessica responded that she wanted 

to file charges, and Castillo took her to the Arlington Police Department.

Castillo testified that, after this incident, appellant no longer lived with her 

and the children. Instead, he lived at an address in Alvarado, Texas. Castillo 

informed the police of this address, but appellant was not arrested until January 

2017, more than fifteen months after Jessica’s outcry. Castillo occasionally saw 

appellant after the incident, usually at convenience stores where appellant would 

give Castillo money to help with bills, and she did at one point invite him back to 

their home in Arlington. Castillo stated that she invited appellant to the house “to 

give him a chance to explain what had happened, what he did to my granddaughter.” 

She stated, “He never say [sic] anything to me—” and defense counsel objected, 

arguing that this testimony improperly commented on appellant’s right to remain 

silent. The trial court instructed the jury to disregard Castillo’s statement, but it 

denied defense counsel’s request for a mistrial.

Jessica testified that appellant began touching her inappropriately when she 

was in fifth grade, around 2011 or 2012. Appellant would come into her bedroom 

while she was asleep—and while Castillo was at work—and touch her breasts and 

her vagina with his fingers. This happened around two or three times per week during 

the weeks appellant was working in Arlington, and this went on for around five 

years. Jessica also testified that appellant would put his mouth on her vagina and he 
6

would make her touch his penis with her hand. When Jessica was in seventh grade, 

he made her watch pornography on his phone, but this was the only occasion that he 

did this.

With respect to the incident on September 26 and 27, 2015, which occurred 

when she was fourteen years old, Jessica testified that appellant “came into [her] 

room, did the same things as he would any other night.” On request by the State, she 

clarified:

Doing things with my vagina, my breasts, using his mouth. And that 

night—I got tired of it that night. I was trying to pull away, and I started 

to wake up, and I guess he noticed that I started crying. He walked 

away.

Appellant came back into her bedroom that evening, but Jessica pretended to be 

asleep, and he did not do anything more to her. She further testified, “I really had 

never cried any of the other nights, and when I cried this night, that’s what made me 

feel like it just needs to stop already.” She stated that she was scared to tell anyone 

about the abuse because she knew that appellant helped her family financially and 

“was a big part of our lives.” Jessica decided to tell Castillo what had been 

happening, but she did not give Castillo many details.

Jessica testified that she and her family continued to see appellant after she 

reported the abuse to the police, stating, “I was okay with [seeing him] because I 

was used to facing everything throughout the years.” She stated that she still loved 
7

him and still wanted to see him “[b]ecause I knew he was my grandpa no matter 

through all the things.”

On cross-examination, Jessica had the following exchange with defense 

counsel:

Q: You told [Castillo] that [appellant] touched you on your private 

parts; is that correct?

A: Yes.

Q: Back on September 27th?

A: Yes.

Q: And that he exposed himself; is that correct?

A: No.

Q: He would have had to expose himself if—would that be correct?

A: Can you—

Q: In doing some of these things back on September 27th?

A: Can you say that again? I’m sorry.

Q: He would have had to expose himself, wouldn’t he, to do some 

of these things back on September 27th?

A: Yes.

Alexis Chase, a forensic interviewer with Alliance for Children, conducted 

Jessica’s forensic interview on October 12, 2015. Chase served as an outcry witness 

for all instances of abuse that Jessica disclosed, with the exception of the events of 

September 26 and 27, 2015, for which Castillo served as the outcry witness. Chase 

described Jessica as quiet, hesitant, and emotional during the interview. Jessica told 
8

Chase that her grandfather—appellant—began touching her vagina with his fingers 

when she was in fifth grade, and this continued approximately twice per week until

she was fourteen years old. Jessica told Chase that the abuse would occur at night, 

in her bedroom, and she would be lying on her bed. Chase testified that Jessica 

disclosed other acts of sexual abuse that appellant would perform on her, including 

touching her breasts, putting his mouth on her vagina, and making her touch his 

penis with her hand. Jessica told Chase that all of these actions occurred more than 

one time.4

Appellant testified on his own behalf. He denied ever touching Jessica 

inappropriately. Appellant testified that, on the morning of September 27, 2015, he 

had a heated argument with Castillo after she refused to allow appellant to take the 

children to Oklahoma with a friend and his family, and he expressed his intention to 

seek a divorce from Castillo. After Castillo attempted to escalate the argument into 

a physical fight, appellant left the house without any of his clothes or other 

belongings. He stated that he learned of Jessica’s allegations against him 

approximately one week later and that the allegations shocked him. He testified that, 

after the allegations, when he began living in Alvarado, Castillo, Jessica, and 

 

4 Theresa Fugate, a sexual assault nurse examiner, conducted a medical examination 

of Jessica on October 19, 2015. She testified concerning statements that Jessica 

made to her during the course of the exam. Fugate’s testimony was consistent with 

Chase’s testimony concerning statements Jessica made during her forensic 

interview.
9

Jessica’s younger brothers visited him there about four times. Jessica, and all of the 

other family members, “acted all the same,” and he did not notice any difference in 

their behavior compared to before the allegations. Appellant also testified that, over 

the years, he had several disagreements with Jessica, including over phone and tablet 

usage, alleged misrepresentations Jessica made on social media concerning her age, 

alleged out-of-state phone calls, alleged requests by Jessica to have a boyfriend come 

live with them, and Jessica’s allegedly sneaking out of the house at night.

The indictment against appellant alleged six counts.5 The first count, for 

continuing sexual abuse of a young child, alleged:

That Otoniel Guzman, hereinafter called Defendant, in the County of 

Tarrant, State of Texas, on or about the 1st day of September 2011 

through the 5th day of March 2015, during a period of time that is 30 

days or more in duration, did commit two or more acts of sexual abuse, 

namely: aggravated sexual assault of a child under 14: by causing the 

finger of the defendant to penetrate the sexual organ of [Jessica], and/or 

by causing the mouth of the defendant to contact the sexual organ of 

[Jessica], and/or indecency with a child: by causing [Jessica] to contact 

any part of the genitals of the defendant, and/or by causing the hand of 

the defendant to contact any part of the genitals of [Jessica], and at the 

time of the commission of each of these acts of sexual abuse the 

defendant was 17 years of age or older and [Jessica] was younger than 

14 years of age.

Counts two through five of the indictment—two counts of aggravated sexual assault 

of a child and two counts of indecency with a child by contact—alleged each specific 

 

5 Count six alleged indecency with a child by touching Jessica’s breast. The State 

waived this count prior to the beginning of testimony.
10

act of sexual abuse mentioned in count one of the indictment as a separate charge. 

The indictment alleged that counts two through five occurred “on or about” 

September 1, 2011.

At the charge conference, defense counsel requested that the trial court 

instruct the jury on two lesser-included offenses: indecency with a child by exposure 

and indecent exposure. The trial court denied this request. The jury charge submitted 

count one—continuous sexual abuse of a young child—to the jury and counts two 

through five as lesser-included offenses, instructing the jury to consider those counts 

only if it did not reach a verdict on count one. The jury found appellant guilty of 

continuous sexual abuse of a young child and assessed his punishment at thirty 

years’ confinement. This appeal followed.

Outcry Witness Testimony

In his first issue, appellant contends that the trial court erred by allowing 

Castillo to testify as an outcry witness and, as a result, her testimony concerning 

what Jessica had told her about the abuse constituted inadmissible hearsay.

A. Standard of Review and Governing Law

Hearsay is an out-of-court statement that a party offers in evidence to prove 

the truth of the matter asserted in the statement. TEX. R. EVID. 801(d). Generally, 

hearsay is not admissible unless provided for by the Rules of Evidence, a statute, or 

other rule. TEX. R. EVID. 802.
11

One recognized exception to the general prohibition against hearsay allows, 

in the prosecution for certain sexual abuse cases involving children, the admission 

of the child’s out-of-court statement concerning the abuse made to an outcry witness. 

See Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011). Under Code of 

Criminal Procedure article 38.072, a child complainant’s out-of-court statement is 

admissible if it describes the alleged offense, was made by the child against whom 

the charged offense was allegedly committed, and was made to the first person, 

eighteen years of age or older, other than the defendant, to whom the child made a 

statement about the offense. TEX. CODE CRIM. PROC. ANN. art. 38.072(a); Sanchez, 

354 S.W.3d at 484. The child’s statement “must be ‘more than words which give a 

general allusion that something in the area of child abuse is going on’; it must be 

made in some discernable manner and is event-specific rather than person-specific.” 

Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011) (quoting Garcia v. 

State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990)). Hearsay testimony from more 

than one outcry witness may be admissible under article 38.072 “only if the 

witnesses testify about different events.” Id.

Article 38.072 also includes procedural requirements, including that the party 

intending to offer the statement must, on or before the fourteenth day before trial 

begins, notify the adverse party of its intention to offer the statement, provide the 

name of the outcry witness, and provide a written summary of the statement. TEX.
12

CODE CRIM. PROC. ANN. art. 38.072(b)(1); Sanchez, 354 S.W.3d at 484. Outside the 

presence of the jury, the trial court must conduct a hearing and find that the statement 

is reliable “based on the time, content, and circumstances of the statement.” TEX.

CODE CRIM. PROC. ANN. art. 38.072(b)(2); Sanchez, 354 S.W.3d at 484–85, 488 

(“The only task [article 38.072] assigns the trial court is to determine whether, based 

on the time, content, and circumstances of the statement, the outcry is reliable.”). 

The child complainant must testify or be available to testify at the proceeding in 

court. TEX. CODE CRIM. PROC. ANN. art. 38.072(b)(3); Sanchez, 354 S.W.3d at 485.

The trial court has broad discretion to determine which of several witnesses is 

an outcry witness, and we will not disturb this decision absent a clear abuse of 

discretion. Chapman v. State, 150 S.W.3d 809, 813 (Tex. App.—Houston [14th 

Dist.] 2004, pet. ref’d). A trial court abuses its discretion when its decision is outside 

the zone of reasonable disagreement. Id.

B. Analysis

Appellant argues that Castillo was not a proper outcry witness because, during 

the outcry-witness hearing outside the presence of the jury, Castillo testified only 

that Jessica had told her that appellant touched her leg and tried to pull her closer to 

him—actions that do not constitute a criminal offense—but during trial Castillo 

improperly expanded her testimony and testified that Jessica told her that appellant 

touched her breasts.
13

At the outcry-witness hearing, Castillo testified that she works the night shift 

and that, on the morning of September 27, 2015, she arrived at the home she shared 

with appellant, Jessica, and Jessica’s two younger brothers, around 5:30 or 6:00 a.m.

Appellant was asleep in their bedroom, and Castillo decided to sleep on the sofa in 

the living room. When Castillo woke up around 10:00 a.m., she noticed appellant 

had left the house, and she called him and asked where he was. Appellant told her 

that he was not coming home, and he stated, “I’m not coming home before you lock 

me up.” Castillo did not understand what appellant was referring to with this 

statement.

Shortly thereafter, Jessica woke up and came into the living room to talk to 

Castillo. Jessica was crying, and she told Castillo that appellant had gone into her 

bedroom that night and touched her inappropriately. Castillo testified that Jessica 

told her that appellant “pushed—he grabbed [Jessica’s] leg, struggled, you know, 

because she was in the corner and she was pulling her leg close to the bed.” Jessica 

told Castillo that appellant came into her bedroom twice that night: the first time she 

struggled and was crying and kicking appellant, and then he came into her room a 

second time after she had calmed down. Jessica also told Castillo that this was not 

the first time that this had occurred. Jessica did not provide details to Castillo of 

other times that appellant had touched her inappropriately, but she said it had 

happened more than five times.
14

Defense counsel objected to Castillo’s testifying as an outcry witness, 

pointing out that in Castillo’s testimony during the hearing, she “just makes 

reference to the fact that the child says that her leg was pulled and that [appellant] 

was pulling her leg,” and that Castillo did not testify concerning any specific details 

about the incident that Jessica had told to her. Defense counsel argued that Jessica’s 

statement to Castillo did not constitute an outcry “because it does not pertain to any 

crime.”

The State then recalled Castillo and asked her if Jessica had specifically told 

Castillo where appellant had touched her. Castillo responded, “On her private part.” 

The State then refreshed Castillo’s recollection using a written statement Castillo 

had made to the police a few weeks after Jessica made her outcry and Castillo 

reported the abuse to police. Castillo then testified that Jessica told her that appellant 

had touched her on her vagina and on her breasts.

The trial court ruled that Castillo was a proper outcry witness and could testify 

concerning what Jessica told her on the morning of September 27, namely, that the 

previous night appellant had touched Jessica’s vagina and breasts. The trial court 

agreed with the State that Jessica’s outcry was credible and reliable. The trial court 

also agreed with the State that because Jessica did not tell Castillo details about other 

times she had been abused by appellant, Castillo was not a proper outcry witness
15

with respect to those incidents.6 Castillo’s trial testimony was consistent with the 

facts to which she had testified during the course of the outcry-witness hearing.

The trial court had evidence before it that Castillo was the first person over 

the age of eighteen whom Jessica told about appellant’s inappropriate actions that 

occurred on September 26 and 27, 2015. Castillo’s testimony at the outcry-witness 

hearing reflected that Jessica told her that, in addition to grabbing her leg, appellant 

also touched her on her vagina and her breasts that night. We conclude that the trial 

court did not abuse its discretion in allowing Castillo to testify as an outcry witness 

concerning the incident of abuse on September 26 and 27. See TEX. CODE CRIM.

PROC. ANN. art. 38.072(a)–(b); Martinez v. State, 178 S.W.3d 806, 811 (Tex. Crim. 

App. 2005) (“[The outcry] witness may recite the child’s out-of-court statements 

concerning the offense, and that testimony is substantive evidence of the crime.”).

Appellant also contends that Castillo’s testimony concerning what Jessica told 

her on September 27 violates the Confrontation Clause. The Confrontation Clause 

“prohibits the admission of a testimonial statement of a declarant who does not 

testify at trial, unless the declarant is unavailable to testify and the defendant had a 

prior opportunity to cross-examine the declarant.” Torres v. State, 424 S.W.3d 245, 

259 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). When, however, “the 

 

6 Alexis Chase, who conducted Jessica’s forensic interview, served as the outcry 

witness for the other incidents of abuse. Appellant makes no complaint on appeal 

concerning the propriety of Chase as an outcry witness for these incidents.
16

declarant appears for cross-examination at trial, the Confrontation Clause places no 

constraints at all on the use of his prior testimonial statements. . . . The Clause does 

not bar admission of a statement so long as the declarant is present at trial to defend 

or explain it.” Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004); Crawford v. 

State, 139 S.W.3d 462, 464–65 (Tex. App.—Dallas 2004, pet. ref’d) (concluding 

that Confrontation Clause did not bar outcry witness’s testimony concerning out-ofcourt statement by child declarant because complainant testified at trial and therefore 

defendant had opportunity to cross-examine complainant); see also Eustis v. State, 

191 S.W.3d 879, 886 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (holding, 

in aggravated assault case, that admission of unsigned transcription of complainant’s 

oral statement did not violate Confrontation Clause because complainant testified at 

trial and defendant had opportunity to cross-examine her).

In this case, both Castillo and Jessica testified at trial. Appellant was able to, 

and did, cross-examine both of them about the events that occurred on September 

26 and 27, as well as Jessica’s outcry statement to Castillo concerning the abuse. 

Because Jessica, the declarant of the out-of-court outcry statement, testified at trial 

and was subject to cross-examination by appellant, admission of her outcry 

statement through Castillo did not violate appellant’s rights under the Confrontation 
17

Clause.7 See Crawford, 541 U.S. at 59 n.9; Eustis, 191 S.W.3d at 886; Crawford, 

139 S.W.3d at 464–65; see also Rojas v. State, No. 02-15-00144-CR, 2016 WL 

6648748, at *5–6 (Tex. App.—Fort Worth Nov. 10, 2016, pet. ref’d) (mem. op., not 

designated for publication) (holding that forensic nurse examiner could testify 

concerning her diagnosis of child complainant as victim of sexual abuse which was

based in part on complainant’s out-of-court statements made during examination and 

that this testimony did not violate Confrontation Clause because child declarant 

testified at trial and was subject to cross-examination).

We overrule appellant’s first issue.

Witness’s Testimony Concerning Right to Remain Silent

In his second issue, appellant contends that the trial court erroneously denied 

his motion for mistrial, made after Castillo testified that after Jessica’s outcry 

 

7 To the extent appellant complains that he was denied his rights under the 

Confrontation Clause to cross-examine either Castillo or Jessica concerning any 

biases they had against him or any motives to lie, appellant has presented no 

argument on appeal concerning specific questions or topics that he was denied the 

opportunity to ask. See Johnson v. State, 490 S.W.3d 895, 909–10 (Tex. Crim. App.

2016) (noting that “main purpose” behind Confrontation Clause “is to secure for the 

opposing party the opportunity of cross-examination” and that right of crossexamination “allows a party to attack the general credibility of that witness ‘or to 

show their possible bias, self-interest, or motives in testifying,’” but right of crossexamination is “not unqualified” and trial courts “retain wide latitude” to limit scope 

and extent of cross-examination as long as limits do not infringe upon Confrontation 

Clause’s guarantee of “an opportunity for effective cross-examination”). Because 

appellant has presented no specific arguments on this complaint, we conclude that 

he has failed to adequately brief this complaint. See TEX. R. APP. P. 38.1(i) (“The 

brief must contain a clear and concise argument for the contentions made, with 

appropriate citations to authorities and to the record.”).
18

appellant refused to answer Castillo’s question concerning what had happened with 

Jessica. Specifically, appellant argues that Castillo’s testimony improperly 

commented on his right to remain silent.

A mistrial is the appropriate remedy when the objectionable event is “so 

emotionally inflammatory that curative instructions are not likely to prevent the jury 

from being unfairly prejudiced against the defendant.” Archie v. State, 340 S.W.3d 

734, 739 (Tex. Crim. App. 2011) (quoting Young v. State, 137 S.W.3d 65, 71 (Tex. 

Crim. App. 2004)); Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) 

(“A mistrial is the trial court’s remedy for improper conduct that is ‘so prejudicial 

that expenditure of further time and expense would be wasteful and futile.’”) 

(quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). We determine 

whether an error requires a mistrial based on the particular facts of the case. Ocon v. 

State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). “Only in extreme 

circumstances, where the prejudice is incurable, will a mistrial be required.” 

Hawkins, 135 S.W.3d at 77. We review a trial court’s refusal to grant a motion for 

mistrial for an abuse of discretion. Archie, 340 S.W.3d at 738–39.

The Fifth Amendment of the United States Constitution “guarantees an 

accused the right to remain silent during his criminal trial and prevents the 

prosecution [from] commenting on the silence of a defendant who asserts the right.” 

Jenkins v. Anderson, 447 U.S. 231, 235 (1980); Salinas v. State, 369 S.W.3d 176, 
19

177–78 (Tex. Crim. App. 2012) (noting that Fifth Amendment states that no person 

“shall be compelled in any criminal case to be a witness against himself” and that 

Supreme Court has “interpreted this as prohibiting the State from commenting on a 

defendant’s refusal to testify at trial”). “A defendant’s silence before trial, however, 

is considerably less protected from being commented upon at trial.” Salinas, 369 

S.W.3d at 178. The Supreme Court has held that no Fifth Amendment violation 

occurs when a defendant testifies at trial and the State impeaches the defendant with 

his prior silence. Jenkins, 447 U.S. at 235. A criminal defendant has immunity from 

giving testimony, but a defendant may waive this immunity and choose to testify. 

Id. (quoting Raffel v. United States, 271 U.S. 494, 496–97 (1926)). When a defendant 

“takes the stand in his own behalf, he does so as any other witness, and within the 

limits of the appropriate rules he may be cross-examined,” such that a defendant who 

testifies is “subject to cross-examination impeaching his credibility just like any 

other witness.” Id. at 235–36. The Supreme Court thus concluded that “the Fifth 

Amendment is not violated by the use of prearrest silence to impeach a criminal 

defendant’s credibility.” Id. at 238; Salinas, 369 S.W.3d at 178 (“[T]he Supreme 

Court has held that pre-arrest, pre-Miranda silence can be used to impeach a 

defendant who testifies.”).

In Salinas, the Court of Criminal Appeals addressed a question left open by 

the United States Supreme Court: whether pre-arrest, pre-Miranda silence is 
20

admissible against a non-testifying defendant. See 369 S.W.3d at 178. The court 

noted that the plain language of the Firth Amendment “protects a defendant from 

compelled self-incrimination.” Id. at 179. In a pre-arrest, pre-Miranda situation, a 

suspect’s interactions with police officers are not compelled. Id. “Thus, the Fifth 

Amendment right against compulsory self-incrimination is ‘simply irrelevant to a 

citizen’s decision to remain silent when he is under no official compulsion to 

speak.’” Id. (quoting Jenkins, 447 U.S. at 241 (Stevens, J., concurring)). The Court 

of Criminal Appeals ultimately held that “pre-arrest, pre-Miranda silence is not 

protected by the Fifth Amendment right against compelled self-incrimination, and 

that prosecutors may comment on such silence regardless of whether a defendant 

testifies.” Id.; see also Waldo v. State, 746 S.W.2d 750, 755 (Tex. Crim. App. 1988) 

(“Prearrest silence is a constitutionally permissible area of inquiry.”); Buentello v. 

State, 512 S.W.3d 508, 521 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) 

(holding that trial court did not err in refusing to grant motion for mistrial made in 

response to State’s questioning of police investigator concerning whether, in early 

stages of his investigation before defendant had been charged, defendant ever agreed 

to give statement because, at that point in time, defendant had not been arrested or 

read his Miranda warnings and therefore defendant’s silence was not protected by 

Fifth Amendment right against compelled self-incrimination and was permissible 

area of inquiry for State at trial).
21

In this case, it is undisputed that Jessica made her complaint to police officers 

in September 2015 and that appellant was not arrested for the underlying offense 

until January 2017. Castillo testified concerning the contact that she had with 

appellant after Jessica made her outcry and after she made the initial report to police. 

Castillo testified that she occasionally met with appellant at convenience stores, 

primarily to obtain money from appellant to pay the family’s bills and that, at one 

point, she had invited him to the house where they had lived before the incident and 

asked him to stay. The State asked Castillo why she had invited appellant to their 

house after Jessica’s allegations. Castillo responded: “We were just him and me. I 

was trying to give him a chance to explain what had happened, what he did to my 

granddaughter. He never say [sic] anything to me—” At this point, defense counsel 

objected, arguing that Castillo’s testimony was “a direct comment on [appellant’s] 

remaining silent in the face of an allegation,” that the testimony was highly 

prejudicial, and that the testimony was “a comment on his right to remain silent” that 

violated appellant’s Fifth Amendment rights. Defense counsel moved for a mistrial. 

The trial court denied counsel’s request for a mistrial, but instructed the jury to 

disregard Castillo’s comment. Appellant later testified on his own behalf.

Castillo’s testimony concerned a conversation that she had with appellant 

regarding the allegations before appellant was arrested. Appellant’s interaction with 

Castillo was not “compelled,” and he was under no “official compulsion” to speak 
22

and answer her questions. See Salinas, 369 S.W.3d at 179. Because this conversation 

with Castillo occurred prior to appellant’s arrest and his being read his Miranda

warnings, his silence during this conversation does not implicate, and is not 

protected by, the Fifth Amendment’s right against compelled self-incrimination. Id.

We therefore hold that, because Castillo’s testimony was admissible, the trial court 

did not abuse its discretion by refusing to grant appellant’s request for a mistrial. See 

Buentello, 512 S.W.3d at 521.

We overrule appellant’s second issue.

Writ of Attachment for Prospective Juror

In his third issue, appellant complains that the trial court erred by denying his 

request for a writ of attachment to secure the presence of a veniremember who did 

not show up for voir dire because she was in Las Vegas at the time trial started.

Code of Criminal Procedure article 35.01 provides:

When a case is called for trial and the parties have announced ready for 

trial, the names of those summoned as jurors in the case shall be called. 

Those not present may be fined not less than $100 nor more than $500. 

An attachment may issue on request of either party for any absent 

summoned juror, to have him brought forthwith before the court. A 

person who is summoned but not present, may upon an appearance, 

before the jury is qualified, be tried as to his qualifications and 

impaneled as a juror unless challenged, but no cause shall be 

unreasonably delayed on account of his absence.

TEX. CODE CRIM. PROC. ANN. art. 35.01. This statute “is directory and not 

mandatory.” Porter v. State, 623 S.W.2d 374, 377 (Tex. Crim. App. 1981). “[I]n the 
23

absence of governmental misconduct in summoning the venire, the failure to grant 

attachments [for absent veniremembers] is not reversible error unless [the defendant] 

shows injury.” Dowthitt v. State, 931 S.W.2d 244, 251 (Tex. Crim. App. 1996); 

Jackson v. State, 745 S.W.2d 4, 17 (Tex. Crim. App. 1988). To make a showing of 

injury, the defendant must demonstrate that he was forced to accept an 

“objectionable juror,” that is, “one against whom such cause for challenge exists as 

would likely affect [the juror’s] competency or his impartiality in the trial.” Jones v. 

State, 119 S.W.3d 766, 785 (Tex. Crim. App. 2003) (quoting Stephenson v. State, 

494 S.W.2d 900, 904 (Tex. Crim. App. 1973)). We review a trial court’s refusal to 

issue a writ of attachment for a prospective juror who does not appear for voir dire 

for an abuse of discretion. See Jackson, 745 S.W.2d at 17; Porter, 623 S.W.2d at 

377.

Here, before voir dire began, the trial court and the parties discussed an issue 

concerning a veniremember. One of the prospective jurors had informed the trial 

court that she was in Las Vegas and that she would not be present for jury selection. 

The State had no objection to the trial court’s suggestion that this veniremember be 

excused. Defense counsel, however, did object, arguing that this veniremember “was 

duly served to be here, and she chose voluntarily to leave” and that proceeding in 

the absence of this veniremember violated appellant’s due process rights and his 

right to have a fair jury. Defense counsel requested that the trial court issue a writ of 
24

attachment and not proceed with jury selection until this veniremember was present.

The trial court denied this request. The trial court proposed adding another person to 

the venire, to take the place of the absent veniremember, if appellant so desired. 

Defense counsel objected to this proposal, arguing that appellant had “a right to have 

the panel that was actually . . . brought to the Court, at least served to be here.” The 

parties then proceeded to conduct voir dire. At the end of voir dire, defense counsel 

did not make any further objection concerning the absent veniremember, nor did 

defense counsel identify an objectionable juror or object to the seating of the jury.

We conclude that the record does not demonstrate that appellant suffered an 

injury resulting from the trial court’s refusal to issue a writ of attachment for the 

absent veniremember. See Jones, 119 S.W.3d at 785 (holding that, to demonstrate 

injury resulting from trial court’s failure to grant attachment, defendant must 

demonstrate that he was forced to accept “objectionable juror,” or juror “against 

whom such cause for challenge exists as would likely affect [the juror’s] competency 

or his impartiality in the trial”); Dowthitt, 931 S.W.2d at 251 (holding that, in 

absence of governmental misconduct in summoning venire, failure to grant 

attachments is not reversible error unless defendant shows injury); Jackson, 745 

S.W.2d at 17 (holding that burden is on defendant to establish that injury occurred 

due to failure to grant attachment). We therefore hold that the trial court did not err 
25

by refusing to grant appellant’s request to issue a writ of attachment for the absent 

veniremember.

We overrule appellant’s third issue.

Jury Unanimity

In his fourth issue, appellant challenges the constitutionality of Penal Code 

section 21.02, which criminalizes the offense of continuous sexual abuse of a young 

child, because the statute does not require the jury to be unanimous regarding the 

specific acts of sexual abuse committed by a defendant.

The constitutionality of a statute is a question of law that we review de novo. 

Vandyke v. State, 538 S.W.3d 561, 570 (Tex. Crim. App. 2017); Ex parte Lo, 424 

S.W.3d 10, 14 (Tex. Crim. App. 2013). When a person attacks the constitutionality 

of a statute, we begin with the presumption that the statute is valid and that the 

legislature did not act unreasonably or arbitrarily in enacting it. Vandyke, 538 

S.W.3d at 570; Lo, 424 S.W.3d at 14–15. Generally, the burden rests on the party 

challenging the statute to establish that it is unconstitutional. Vandyke, 538 S.W.3d 

at 570–71; Lo, 424 S.W.3d at 15.

Penal Code section 21.02 provides that a person commits an offense if:

(1) during a period that is 30 or more days in duration, the person 

commits two or more acts of sexual abuse, regardless of whether 

the acts of sexual abuse are committed against one or more 

victims; and
26

(2) at the time of the commission of each of the acts of sexual abuse, 

the actor is 17 years of age or older and the victim is a child 

younger than 14 years of age, regardless of whether the actor 

knows the age of the victim at the time of the offense.

TEX. PENAL CODE ANN. § 21.02(b). Section 21.02(c) defines “act of sexual abuse” 

to mean any act that violates one or more of eight different sections of the Penal 

Code, including sexual assault, aggravated sexual assault, and certain acts of 

indecency with a child. Id. § 21.02(c); Price v. State, 434 S.W.3d 601, 606 (Tex. 

Crim. App. 2014) (“The ‘acts of sexual abuse’ are specifically enumerated and are 

lesser-included offenses of the offense of continuous sexual abuse.”). Section 

21.02(d) states:

If a jury is the trier of fact, members of the jury are not required to agree 

unanimously on which specific acts of sexual abuse were committed by 

the defendant or the exact date when those acts were committed. The 

jury must agree unanimously that the defendant, during a period that is 

30 or more days in duration, committed two or more acts of sexual 

abuse.

TEX. PENAL CODE ANN. § 21.02(d).

“Texas law requires that a jury reach a unanimous verdict about the specific 

crime that the defendant committed.” Cosio v. State, 353 S.W.3d 766, 771 (Tex. 

Crim. App. 2011); Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005) 

(“Under our state constitution, jury unanimity is required in felony cases, and, under 

our state statutes, unanimity is required in all criminal cases.”). The jury “must agree 

that the defendant committed one specific crime,” but this does not mean that “the 
27

jury must unanimously find that the defendant committed that crime in one specific 

way or even with one specific act.” Landrian v. State, 268 S.W.3d 532, 535 (Tex. 

Crim. App. 2008); Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004) 

(“The unanimity requirement is not violated by instructing the jury on alternative 

theories of committing the same offense, in contrast to instructing the jury on two 

separate offenses involving separate incidents.”). In both Texas and federal courts, 

the jury must be unanimous in finding that the defendant committed a specific 

statutory crime, “[b]ut it is the legislature, not the courts, that defines the forbidden 

act, the required culpability, and the particular result, if any.” Landrian, 268 S.W.3d

at 536; see also Valdez v. State, 218 S.W.3d 82, 84 (Tex. Crim. App. 2007) (“[T]he 

question of what a jury must be unanimous about in cases like this [involving jury 

finding on enhancement paragraphs] is determined by the legislative intent of the 

applicable statute.”).

Although the Court of Criminal Appeals has not specifically addressed 

whether section 21.02 allows a defendant to be convicted on less than a unanimous 

verdict as to the acts constituting the offense of continuous sexual abuse of a child,

and is therefore unconstitutional, multiple intermediate appellate courts, including 

the Fort Worth Court of Appeals, whose law we are bound to follow in this transfer 
28

case,8 have held that section 21.02 does not violate a defendant’s constitutional right 

to a unanimous jury verdict.

In Jacobsen v. State, the Austin Court of Appeals was the first court to address 

whether section 21.02 violates the jury unanimity requirement. The court noted that 

jurors “must unanimously agree on each element of the crime in order to convict, 

but the jurors need not agree on all the underlying facts that make up a particular 

element.” Jacobsen v. State, 325 S.W.3d 733, 736 (Tex. App.—Austin 2010, no 

pet.). The court focused on the specific language of section 21.02 as a whole, stating 

that, under that section, “it is the commission of two or more acts of sexual abuse 

over the specified time period—that is, the pattern of behavior or the series of acts—

that is the actus reus element of the offense as to which the jurors must be unanimous 

in order to convict.” Id. at 737. The individual acts of sexual abuse that make up the 

pattern of behavior—that is, the eight offenses listed in section 21.02(c) that serve 

 

8 See TEX. R. APP. P. 41.3 (providing that, in transfer cases, “the court of appeals to 

which the case is transferred must decide the case in accordance with the precedent 

of the transferor court under principles of stare decisis if the transferee court’s 

decision otherwise would have been inconsistent with the precedent of the transferor 

court”). This Court, like the Court of Criminal Appeals, has not specifically 

addressed whether Penal Code section 21.02 is an unconstitutional violation of the 

jury unanimity requirement, although we have followed the reasoning of cases from 

our sister courts in the jury unanimity context in holding that, in charging an offense 

for continuous sexual abuse, the State need not allege in the indictment the specific 

manner and means by which the defendant allegedly committed the statutorilydefined predicate offenses of continuous sexual abuse to provide constitutionally 

sufficient notice of the offense. See Buxton v. State, 526 S.W.3d 666, 678–82 (Tex. 

App.—Houston [1st Dist.] 2017, pet. ref’d).
29

as predicate offenses, such as sexual assault, aggravated sexual assault, and certain 

indecency with a child offenses—“are not themselves elements of the offense [of 

continuous sexual abuse], but are merely evidentiary facts, the manner and means 

by which the actus reus element is committed.” Id. Ultimately, the Austin Court 

concluded that section 21.02 does not violate a defendant’s due process rights “by 

permitting a conviction based on a jury’s unanimous finding that the defendant 

engaged in a course of conduct consisting of repeated acts of sexual abuse, but 

without requiring jury unanimity as to the individual acts that made up the course of 

conduct.” Id. at 739.

Other intermediate appellate courts have agreed with this analysis, holding 

that “[t]he commission of two or more acts of sexual abuse over a specified time 

period—that is, the pattern of behavior or the series of acts—is the element as to 

which the jurors must be unanimous in order to convict,” and therefore section 21.02 

“does not allow jurors to convict on the basis of different elements.” Pollock v. State, 

405 S.W.3d 396, 405 (Tex. App.—Fort Worth 2013, no pet.); see, e.g., Carmichael 

v. State, 505 S.W.3d 95, 106 (Tex. App.—San Antonio 2016, pet. ref’d); Holton v. 

State, 487 S.W.3d 600, 605–08 (Tex. App.—El Paso 2015, no pet.); McMillian v. 

State, 388 S.W.3d 866, 872–73 (Tex. App.—Houston [14th Dist.] 2012, no pet.); 

Kennedy v. State, 385 S.W.3d 729, 731–32 (Tex. App.—Amarillo 2012, pet. ref’d); 

Render v. State, 316 S.W.3d 846, 856–58 (Tex. App.—Dallas 2010, pet. ref’d).
30

Our sister courts have also held that because the alternate manner and means 

of committing the offense of continuous sexual abuse—the predicate offenses 

enumerated in section 21.02(c)—all involve the actual or intended sexual abuse of a 

child, are all felonies, are all morally equivalent, and are all conceptually similar, 

section 21.02 does not violate federal due process guarantees even though it allows 

jurors to disagree on the manner and means of committing the offense of continuous 

sexual abuse. See Casey v. State, 349 S.W.3d 825, 829–30 (Tex. App.—El Paso 

2011, pet. ref’d); see, e.g., McMillian, 388 S.W.3d at 872–73; Jacobsen, 325 S.W.3d 

at 739; cf. White v. State, 208 S.W.3d 467, 469 (Tex. Crim. App. 2006) (holding that 

predicate felonies alleged in felony-murder case “constitute the manner or means 

that make up the ‘felony’ element” of offense and jury unanimity is not required and 

holding that “dispensing with jury unanimity on the felonies alleged in this case does 

not violate due process because these felonies are ‘basically morally and 

conceptually equivalent’”) (quoting Jefferson v. State, 189 S.W.3d 305, 313 (Tex. 

Crim. App. 2006)).

We agree with the intermediate appellate courts that have addressed this issue 

and hold that Penal Code section 21.02 does not violate the state and federal 

guarantees of jury unanimity.

We overrule appellant’s fourth issue.
31

Lesser-Included Offense Instructions

Finally, in his fifth and sixth issues, appellant argues that the trial court erred 

by refusing to instruct the jury on the lesser-included offenses of indecency with a 

child by exposure and indecent exposure.

A. Governing Law

Code of Criminal Procedure article 37.09 pertains to lesser-included offenses 

and provides that an offense is a lesser-included offense if:

(1) it is established by proof of the same or less than all the facts 

required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less 

serious injury or risk of injury to the same person, property, or 

public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less 

culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an 

otherwise included offense.

TEX. CODE CRIM. PROC. ANN. art. 37.09.

Courts apply a two-step analysis to determine whether an instruction on a 

lesser-included offense should be given to the jury. State v. Meru, 414 S.W.3d 159, 

162 (Tex. Crim. App. 2013); Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. 

App. 2012). The first step of this analysis is a question of law that does not depend 

on the evidence at trial and compares the elements of the offense as alleged in the 

indictment with the elements of the requested lesser-included offense. Meru, 414 
32

S.W.3d at 162; see Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007) 

(holding that first step in lesser-included offense analysis must be “capable of being 

performed before trial by comparing the elements of the offense as they are alleged 

in the indictment or information with the elements of the potential lesser-included 

offense”). The question at this step is, “[A]re the elements of the lesser offense 

‘established by proof of the same or less than all the facts required to establish[] the 

commission of the offense charged’?” Ex parte Watson, 306 S.W.3d 259, 264 (Tex. 

Crim. App. 2009) (quoting TEX. CODE CRIM. PROC. ANN. art. 37.09(1)). Courts 

compare the statutory elements and any “descriptive averments,” such as “nonstatutory manner and means[] that are alleged for purposes of providing notice,” 

alleged in the indictment for the greater offense to the statutory elements of the lesser 

offense. Id. at 273 (op. on reh’g) (per curiam).

If the analysis under the first step supports a conclusion that the defendant’s 

requested lesser offense is a lesser-included offense, the court moves to the second 

step of the analysis and considers whether a rational jury could find that, if the 

defendant is guilty, he is guilty only of the lesser offense. Meru, 414 S.W.3d at 162–

63. This step is a factual determination that is based on the evidence presented at 

trial. Id. at 163. If there is evidence that raises a fact issue on whether the defendant 

is guilty only of the lesser offense, a lesser-included offense instruction is warranted, 

“regardless of whether the evidence is weak, impeached, or contradicted.” Id.; Hall, 
33

225 S.W.3d at 536 (“In this step of the analysis, anything more than a scintilla of 

evidence may be sufficient to entitle a defendant to a lesser charge.”). The evidence 

must establish the lesser offense as a “valid, rational alternative to the charged 

offense.” Hall, 225 S.W.3d at 536 (quoting Forest v. State, 989 S.W.2d 365, 367 

(Tex. Crim. App. 1999)). The evidence may be “weak or contradicted,” but it “must 

still be directly germane to the lesser-included offense and must rise to a level that a 

rational jury could find that if [the defendant] is guilty, he is guilty only of the lesserincluded offense.” Cavazos, 382 S.W.3d at 385. To meet this threshold, the evidence 

must be more than mere speculation; this threshold “requires affirmative evidence 

that both raises the lesser-included offense and rebuts or negates an element of the 

greater offense.” Id.

B. Analysis

Appellant argues that the trial court erred by refusing to include jury 

instructions on the lesser-included offenses of indecency with a child by exposure 

and indecent exposure. He contends that the evidence establishes that he committed 

the offenses of indecency with a child by exposure and indecent exposure because 

defense counsel asked Jessica if, at the time of the last instance of abuse, appellant 

“would have had to expose himself . . . to do some of these things back on September 

27th,” and Jessica agreed.
34

The elements of continuous sexual abuse, as alleged in the indictment against 

appellant, are:

(1) appellant;

(2) during a period of time that is 30 days or more in duration;

(3) committed two or more acts of sexual abuse, namely

(a) aggravated sexual assault of a child under the age of 

fourteen by causing his finger to penetrate Jessica’s sexual 

organ;

(b) aggravated sexual assault of a child under the age of 

fourteen by causing his mouth to contact Jessica’s sexual 

organ;

(c) indecency with a child by causing Jessica to contact any 

part of his genitals; or

(d) indecency with a child by causing his hand to contact any 

part of Jessica’s genitals; and

(4) at the time of the commission of each of these acts of sexual 

abuse, appellant was seventeen years of age or older and Jessica 

was younger than fourteen.

See TEX. PENAL CODE ANN. § 21.02.

A person commits the offense of indecency with a child by exposure if:

(1) with a child younger than seventeen years of age, and

(2) with intent to arouse or gratify the sexual desire of any person,

(3) the person exposes the person’s anus or any part of the person’s 

genitals, knowing the child is present.

Id. § 21.11(a)(2)(A). A person commits the offense of indecent exposure if he 

“exposes his anus or any part of his genitals with intent to arouse or gratify the sexual 
35

desire of any person, and he is reckless about whether another is present who will be 

offended or alarmed by his act.” See id. § 21.08(a).

Assuming, without deciding, that indecency with a child by exposure and 

indecent exposure are lesser-included offenses of continuous sexual abuse, we 

nevertheless disagree with appellant that he was entitled to instructions on these 

lesser-included offenses. In the second step of the lesser-included offense analysis, 

we must consider the evidence presented at trial and determine whether a rational 

jury could find that, if the defendant is guilty, he is guilty only of the lesser offense. 

See Meru, 414 S.W.3d at 162–63. There must be affirmative evidence in the record 

that “both raises the lesser-included offense and rebuts or negates an element of the 

greater offense.” See Cavazos, 382 S.W.3d at 385.

Appellant relies on the following exchange between defense counsel and 

Jessica as evidence that he claims entitles him to the requested lesser-included 

offense instructions:

Q: You told her [Castillo] that he [appellant] touched you on your 

private parts; is that correct?

A: Yes.

Q: Back on September 27th?

A: Yes.

Q: And that he exposed himself; is that correct?

A: No.

Q: He would have had to expose himself if—would that be correct?
36

A: Can you—

Q: In doing some of these things back on September 27th?

A: Can you say that again? I’m sorry.

Q: He would have had to expose himself, wouldn’t he, to do some 

of these things back on September 27th?

A: Yes.

Appellant argues that “[a]ll the acts are contained within each other” and that, for 

the alleged improper contact to occur, he necessarily had to have exposed himself to 

Jessica.

Although this testimony is evidence that appellant exposed himself to Jessica, 

this testimony does not negate any element of the charged offense of continuous 

sexual abuse. There is no testimony, for example, that appellant exposed himself to 

Jessica on an isolated incident with no other form of sexual abuse occurring at that 

time. Instead, the testimony is that he exposed himself in the course of committing 

the charged acts of sexual abuse against Jessica. Cf. Aekins v. State, 447 S.W.3d 270, 

277 n.28 (Tex. Crim. App. 2014) (“[O]ne rape will frequently involve the 

defendant’s acts of exposing his genitals, then contacting the victim’s genitals with 

his own, then penetrating the victim’s genitals with his. It is a ‘continuing’ crime in 

the sense that the defendant commits several criminal acts on the way to completing 

the rape, but the lesser acts of exposure and contact merge into the ultimate act of 

penetration.”); Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004) (“The 
37

record in this case does not show an occasion during the assaults when the exposure 

was a separate offense. Under the facts of these incidents, exposure was incident to 

and subsumed by the aggravated sexual assault.”). For a defendant to be entitled to 

an instruction on a lesser-included offense, there must be affirmative evidence in the 

record that “both raises the lesser-included offense and rebuts or negates an element 

of the greater offense.” See Cavazos, 382 S.W.3d at 385. The record does not contain 

any evidence that both raises a lesser-included offense and rebuts or negates an 

element of the greater offense of continuous sexual abuse. We therefore conclude 

that the trial court did not err by refusing appellant’s requested instructions on the 

lesser-included offenses of indecency with a child by exposure and indecent 

exposure.

We overrule appellant’s fifth and sixth issues.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Chief Justice Radack and Justices Keyes and Landau.

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