## In The **Court of Appeals Seventh District of Texas at Amarillo** 

________________________ No. 07 - 22 - 00004 - CR

________________________ JOHNNY MOLINA , APPELLANT V. THE STATE OF TEXAS , APPELLEE
On Appeal from the 140th District Court Lubbock C ounty, Texas Trial Court No. DC - 2021 - CR - 0497 , Honorable Douglas H. Freitag , Presiding

January 5 , 20 2 3 

### MEMORANDUM OPINION Before QUIN N , C.J. , and PARKER and DOSS , JJ. Whether called the “shotgun” approach or “throwing everything in plus the kitchen sink ,” such strategies seldom assist. They confuse and invite comparison to Gertrude’s comment: “ [t] he lady doth protest too much, methinks.” 1 Clarity and conciseness better serve. That said, we turn to the nine issues and sixty
- four pages of writing presented by

1 Hamlet , William Shakespeare.2 Johnny Molina in effort to reverse his conviction for continuous sexual abuse of children. We affirm. **Issue Five** Our work begins with issue five entitled: “ THE EVIDENCE IS LEGALLY INSUFFICIENT TO WARRANT CONVICTION AND/OR TO ASSESS PUNISHMENT OF A LIFE SENTENCE WITHOUT PAROLE. ” We start there because sustaining the complaint provide s him the greatest relief available. See Mixon v. State , 481 S.W.3d 318 , 3 22 (Tex. App.

—Amarillo 2015, pet. ref’d) (requiring the consideration of issues regarding the sufficiency of evidence first)

. But, upon considering the argument, we overrule it. The applicable standard of review is that discussed in Jackson v. Virginia , 443 U.S. 307, 318
- 19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), Merritt v. State , 368 S.W.3d 516 (Tex. Crim. App. 2012), and Brooks v. State , 323 S.W.3d 893 (Tex. Crim. App. 2010). While applying it, we consider all the evidence favorable to the verdict, even if found inadmissible when addressing later issues. Dewberry v. State , 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Again, the State indicted appellant for continuous sexual abuse of a child. The crime occurs when “during a period that is 30 or more days in duration ” a 17
- year - old or older 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 the victim is “younger than 14 years of age

. . . .” T EX
. P ENAL C ODE A NN
. § 21.02(b)(1) , ( b)( 2)(A). A review of the evidence at bar illustrates that appellant sexually molested the two daughters of his girlfriend. The acts included touching their vagina l areas and attempting to engage in anal intercourse. He did so more than twice during a period spanning more than thirty3 days. And, at the time, the girls were under fourteen years of age. So, the record contains evidence on which reasonabl e jurors cou ld find appellant guilty, beyond reasonable doubt, of committing continuous sexual abuse of a child

. In structuring his argument, though, appellant d id not discuss the evidence inculpat ing him. Nor d id he attempt to explain why it did not prove his guilt. Rather, he allude d to such matter s as 1) the nature of the prosecutor’s closing argument, 2) the alleged bias of witness es , 3) the admission of supposed hearsay, 4) an amendment to the indictment about w hich he failed to object, 5) the utterance of personal opinion as to his guilt by one or more witnesses, 6) reference to appellant as “a monster” being a “racially charged” statement, 7) how “ [p] ersons of color, like Appellant, often obtain [ing] higher sen tences ,” 8) the lack of specific jury findings which specify the underlying “acts of sexual abuse” committed by him , and 9) the collective effect of the foregoing upon his conviction

. Even if those topics were components of or subject to consideration und er the controlling standard of review, they were inadequately brief ed . That is, he accompanied none of them with both substantive analysis and citation to authority, as required by Rule of Appellate Procedure 38.1(i). T EX
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. 38.1(i) (stating that the brief must contain a clear and concise argument for the contentions made with appropriate citation to authority and the record)

. Thus, they were waived to the extent they served as the foundation for his argument about the alleged insuf ficiency of the evidence. Smith v. Dixon , No. 07
- 20
- 00197
- CV, 2021 Tex. App. LEXIS 5592 , at *6 (Tex. App.

— Amarillo July 14, 2021 , pet. denied) (mem. op. , not designated for publication ) (finding the issue waived because the a ppellant p rovided neither su bstantive argument
nor citation to legal authority and the record )

.4 **Issue On e**  Appellant ’s explanation of his first issue leaves us scratching our collective heads while attempting to understand his complaint . He seems to question whether the jury found that he committed two or more acts of sexual abuse within a period of thirty days
or more. He suggests that it did not because 1) t he State argued that jurors need not consider guilt of lesser included offens es until after considering guilt on the greater offense and 2) opining that “ the offense of continuous sexual abuse of a child was not a count in either the grand jury indictment or in the amended indictmen t . . . ”

. According to appellant, t he combining of these circumstances s omehow led the jurors to believe they need not consider the lesser included offenses when deciding if appellant committed the greater offense of continuous sexual abuse of a child. As understood, w e overrule the issue for the foll owing reasons

. First, we read indictments as a whole. Brooks v. State , 382 S.W.3d 601 , 60 5
- 06 (Tex. App.

— Amarillo 2012, pet ref’d). So read, the amended indictment at bar clearly describes the offense of continuous sexual abuse of a child. Through it, t he State charged him with committing “two or more” itemized sexual offenses against two females who
were younger than fourteen during a period “ from on or about the 23rd day of October, 2014 through the 9th day of February, 2018 .” These encompass the very elements of the crime , as d escribed in section 21.02 of the Texas Penal Code. T EX
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. § 21.01 (b) (stating that a person commits the offense of continuous sexual abuse of a child if “ 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 the victims are “ younger than 14 years of age

. . . ”).5 Second, w e presume the jury foll ows the trial court ’s instructions and charge, absent evidence ot her wise

. Resendiz v. State , 112 S.W.3d 541 , 546 (Tex. Crim. App. 2003); Hareter v. State , 435 S.W.3d 356 , 361 (Tex. App.

— Amarillo May 30, 2014, no pet.). Here, the trial court instructed t he jurors, via its charge, that they “ are bound to receive the law from **the Court** .” 2 (Emphasis added). So too were they informed, via the same document, of 1) the elements of continuous sexual abuse of a child as described in the statute and 2) the need to “ first

. . . determine whether the defendant is guilty beyond a reasonable doubt of the charged offense of continuous sexual abuse of a child or children

. ” An application paragraph followed wherein the trial court itemized multiple instances of se xual abuse allegedly committed by appellant . The court coupled that with the statement about the jurors needing to find he committed two or more of them over a thirty
- day or more period to be guilty of the crime . Appellant cites us to no evidence ill ustrating that the jurors failed to heed those instructions. So, we presume that the jury did as charged when finding appellant guilty of continuous sexual abuse. **Issue Tw o**  A ppellant next argues that his right to a unanimous jury verdict was violated . This purportedly occurred because the jurors did not expressly find he committed the same two or more underlying instances of abuse. We previously addressed the identical issue in Pfeifer v. State , No. 07
- 14
- 00277
- CR, 2016 Tex. App. LEXIS 7825 , at *11
- 12 (Tex. App.

— Amarillo July 21, 2016, pet. ref’d) (mem. op. , not designated for publication ) and Kennedy v. State , 385 S.W.3d 729 , 731
- 32 (Tex. App.

—Amarillo 2012, pet. ref ’ d) and

2 We emphasi ze “the Court” since appellant seems to suggest that the jury followed the law as explained by the prosecutor. The trial court having admonished the jurors that it provides them the law, we again presume they heeded the directive; at least, appe llant did not direct us to evidence indicating they did not.6 rejected it. Jurors need not agree on which underlying individ ual acts the defendant committed. Kenned y , 385 S.W.3d at 732. To the extent that appellant also asserts that the jury charge “ regarding a finding of continuous sexual abuse did not mention the charge of continuous sexual abuse ,” we invite him to re
- rea d the document. It expressly mentions the crime, its elements, and applies those elements to the circumstances at bar. So too did it instruct the jurors that they “ will first be required to determine whether the defendant is guilty beyond a reasonable do ubt of the charged offense of continuous sexual abuse of a child or children. ” We overrule appellant’s second issue. **Issue Three** In a ppellant’s third issue, he argues the trial court erred in permitting the State to amend its indictment to include a n offense not considered by the grand jury. Through the amendment, the State added another instance of ass au lt to the litany of acts submitted as the manner and means by which he committed continuous sexual abuse. Adding that “offense” “ invaded the provi nce of the grand jury and violated Article 1, § 10 of the Texas Constitution ,” according to appellant. We overrule the issue. A ppellant did not object to the amendment. By failing to object, he waived his complaint. Ramirez v. State , 105 S.W.3d 628 , 630 (Tex. Crim. App. 2003). And, assuming arguendo that the addition in question resulted in the inclusion of an additional offense as opposed to the addition of another instance describing the manner and means of committing the one offense, it did not fall outside the trial court’s jurisdiction. Contrary to appellant’s suggestion otherwise, the return of an indictment is the act vesting the trial7 court with jurisdiction over the prosecution. Id. at 629. A grand jury returned the indictment at bar, thereby vesting the trial court with jurisdiction to try the cause

. **Issue S ix**  By his sixth issue, a ppellant contends the trial court erred in admitting the statements made by him to a detective during his interview with police. The statements were purportedly made while a ppellant was in custody and without being afforded his Miranda admonishments. We overrule the issue for the simple reason that appellant failed to preserve it at trial. Not only did he withhold objection when a recording of the interview was admitted into evidence but he also uttered “ [n] o objection, your Honor.” See King v. State, N o. 11
- 21
- 00039
- CR, 2022 Tex. App. LEXIS 6800 , at *5
- 6 (Tex. App.

— Eastland Sept

. 8, 2022, no pet.) (mem. op. , not designated for publication ) (holding that appellant waived his art icle 38.22 since it was not raised at trial); Brantley v. State , No. 07
- 13
- 00 219
- CR, 2015 Tex. App. LEXIS 1730 , at *5
- 6 (Tex. App.

—Amarillo Feb

. 23, 2015 , no pet.) (mem. op. , not designated for publication ) (holding that appellant waived his Miranda complaint on appeal because he failed to raise it at trial). **Issue Seven** Next , appellant argues that the admission of hearsay evidence violated his Sixth Amendment constitutional right to confront witnesses against him. The purported hearsay came from th ree witnesses, namely Rachel Martinez, Patti Salazar, and John Wuerflein

. Yet, this constitutional basis for excluding the testimony was not mentioned below

. Nor do general hearsay objections fill the void we encountered

. Wright v. State, 28 S.W.3d 526 , 536 (Tex. Crim. App. 2000) (holding that appellant’s general hearsay objection failed8 to preserve is complaint founded on the Confrontation Clause). Thus, we overrule the issue as waived

. **Issue Eight** Appellant’s next issue involves the admission of outcry testimony. Allegedly, the witnesses in question were not the first adults to whom the child victims revealed instances of appellant’s abuse. Thus, admission of their testimony about what the victim s told them fell outside the hearsay exception created by art icle 38.072 of the Texas Code of Criminal Procedure. See T EX
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. art. 38.072. Yet, the two victims also testified at trial and, while doing so, described instances of sexual abuse inflicted upon them by appellan t. Furthermore, their testimony about those instances w as admitted without objection. So, we have of record other evidence like that imparted by the alleged outcry witnesses. The presence of that substantially similar, yet unobjected to, evidence render ed harmless any supposed error regarding compliance with art icle 38.072. Mitchell v. State , No. 07
- 18
- 00169
- CR, 2019 Tex. App. LEXIS 1800 , at *5 (Tex. App.

— Amarillo March 7, 2019, no pet.) (mem. op. , not designated for publication ) (stating that the impro per admission of evidence is harmless if the same or similar evidence is admitted without objection at some other point during trial )

. We overrule the issue. **Issue Nine** Next, a ppellant claims his right to be free from double jeopardy was violated. This was purportedly so because he was subjected to multiple punishments for the same offense. We overrule the issue. Assuming arguendo that appellant’s contention about including lesser included offenses in the jury charge exposes the accused to double jeopardy , w e note that he was9 convicted of only one crime. That crime was the greater and more serious offense of continuous sexual abuse of a child. That being so, he suffered no harm. This is so because the remedy to a double jeopardy violation based on subjection to multiple punishments for the same crime is to affirm the conviction for the most serious offense and vacate the other conviction. Duran v. State , 492 S.W.3d 741 , 745 (Tex. Crim. A pp. 2016); Bigon v. State , 252 S.W.3d 360 , 372
- 73 (Tex. Crim. App. 2008). So, he received the relief to which he would have been entitled had a violation occurred. **Issue Four** We consider appellant’s fourth issue last, given its tenor. Through it, he g lobally asserts that the “many, multiple errors” in this case contributed to a wrongful verdict and sentence. Having overruled each of appellant’s other issues for the lack of error , waiver, inadequate briefing, and the lack of harm ( assuming error occurred) , we overrule this issue as well. The trial court’s judgment is affirmed

.
Brian Quinn Chief Justice
Do not publish.