NO. ____________________ 

IN THE COURT OF CRIMINAL APPEALS OF TEXAS 

ALCENIOS MARTINEZ 

a/k/a AUCENSIO LOPEZ, 

v.

THE STATE OF TEXAS 

From the Eastland Court of Appeals 

Cause No. 11-13-00080-CR

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW 

E. Alan Bennett

State Bar #02140700 

Counsel for Appellant 

Sheehy, Lovelace & Mayfield, P.C. 

510 N. Valley Mills Dr., Ste. 500 

Waco, Texas 76710 

Telephone: (254) 772-8022 

Telecopier: (254) 772-9297 

Email: abennett@slmpc.com 

ORAL ARGUMENT REQUESTED

PD-0409-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 4/13/2015 8:20:46 AM

Accepted 4/15/2015 4:28:42 PM

ABEL ACOSTA

CLERK
Appellant’s PDR Page 2

Identity of Judge, Parties and Counsel

Appellant, pursuant to Rule of Appellate Procedure 68.4(a), provides 

the following list of the trial court judge, all parties to the trial court’s 

judgment, and the names and addresses of all trial and appellate counsel.

THE TRIAL COURT:

Hon. Phil Robertson

220th District Court, Comanche County

101 West Central

Comanche, Texas 76442

THE DEFENSE:

Alcenios Martinez 

aka Aucensio Lopez

Rickey L. Bryan

P.O. Box 587

Hamilton, Texas 76531

E. Alan Bennett

510 North Valley Mills Drive, Suite 500

Waco, Texas 76710

Trial Court Judge

Appellant

Trial Counsel

Appellate Counsel
Appellant’s PDR Page 3

THE STATE:

Adam Sibley

Assistant District Attorney

B.J. Shepherd

District Attorney

Trial & Appellate Counsel

220th Judicial District

P.O. Box 368

Meridian, Texas 76665
Appellant’s PDR Page 4

Table of Contents

Identity of Judge, Parties and Counsel..................................................................... 2

Table of Contents......................................................................................................... 4

Index of Authorities .................................................................................................... 5

Statement Regarding Oral Argument ...................................................................... 7

Statement of the Case.................................................................................................. 7

Statement of Procedural History............................................................................... 8

Grounds for Review.................................................................................................... 8

Reasons for Granting Review.................................................................................... 9

Argument.................................................................................................................... 10

1. Whether the trial court in a continuous sexual abuse case must 

instruct the jury that jurors must be unanimous as to which acts of sexual 

abuse were committed when the evidence shows only two but the State 

offers evidence of an extraneous sex offense that does not fit within the 

allegations of the indictment. ........................................................................... 10

2. Whether aggravated sexual assault is both a conduct-oriented and a 

result-oriented offense....................................................................................... 16

Prayer.......................................................................................................................... 22

Certificate of Compliance......................................................................................... 23

Certificate of Service ................................................................................................. 23

Appendix .................................................................................................................... 24
Appellant’s PDR Page 5

Index of Authorities

Texas Cases

Baker v. State, 94 S.W.3d 684 (Tex. App.—Eastland 2002, no pet.).......... 17, 19

Chanthakoummane v. State, No. AP-75794, 2010 WL 1696789 (Tex. Crim. 

App. Apr. 28, 2010) ...............................................................................................18

Cook v. State, 884 S.W.2d 485 (Tex. Crim. App. 1994) ............................... 18, 20

Ex parte Morales, 416 S.W.3d 546 (Tex. App.—Houston [14th Dist.] 2013, pet. 

ref’d)................................................................................................................. 13, 14

Fulmer v. State, 401 S.W.3d 305 (Tex. App.—San Antonio 2013, pet. ref’d) .11

Gonzales v. State, 304 S.W.3d 838 (Tex. Crim. App. 2010)................................20

Huffman v. State, 267 S.W.3d 902 (Tex. Crim. App. 2008)................................18

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

denied, 134 S.Ct. 681 (2013) ...................................................................... 11, 12, 14

Kreitel v. State, No. 06-01-00200-CR, 2003 WL 193493 (Tex. App.—

Texarkana Jan. 30, 2003, no pet.).........................................................................19

Lane v. State, 357 S.W.3d 770 (Tex. App.—Houston [14th Dist.] 2011, pet. 

ref’d)........................................................................................................................16

McMillian v. State, 388 S.W.3d 866 (Tex. App.—Houston [14th Dist.] 2012, 

no pet.) ............................................................................................................. 11, 12

McQueen v. State, 781 S.W.2d 600 (Tex. Crim. App. 1989) ..............................18

Myers v. State, No. 05-95-00842-CR, 1997 WL 36947 (Tex. App.—Dallas Jan. 

31, 1997, no pet.) ....................................................................................................20

Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005)........................................11

Pitre v. State, 44 S.W.3d 616 (Tex. App.—Eastland 2002, pet. ref’d)..............19

Pizzo v. State, 235 S.W.3d 711 (Tex. Crim. App. 2007)............................... 11, 14
Appellant’s PDR Page 6

Pleasant v. State, No. 01-90-00878-CR, 1992 WL 79686 (Tex. App.—Houston 

[1st Dist.] Apr. 23, 1992, pet. ref’d).............................................................. 17, 19

Saldivar v. State, 783 S.W.2d 265 (Tex. App.—Corpus Christi 1989, no pet.) ...

..................................................................................................................................19

Vick v. State, 991 S.W.2d 830 (Tex. Crim. App. 1999).......................................20

Texas Statutes

TEX. PEN. CODE § 21.02(d).....................................................................................11

TEX. PEN. CODE § 22.021(a)(1)(B)(i)......................................................................17

TEX. PEN. CODE § 25.11(a) .....................................................................................12

Rules

TEX. R. APP. P. 66.3 ........................................................................................passim
Appellant’s PDR Page 7

Statement Regarding Oral Argument

Oral argument will aid the decisional process. This petition presents 

two issues that this Court has not addressed. Oral argument will give 

counsel the opportunity to present additional argument and the judges to 

ask additional questions regarding appropriate jury instructions for 

continuous sexual abuse cases and the applicable conduct elements for the 

offense of aggravated sexual assault. For these reasons and to address any 

other issues, Appellant respectfully requests the opportunity to appear and 

present oral argument.

Statement of the Case

A jury convicted Appellant of continuous sexual abuse of a young 

child. The trial court, the Honorable Phil Robertson, presiding judge of the 

220th District Court of Comanche County, sentenced Appellant to fifty 

years’ imprisonment.
Appellant’s PDR Page 8

Statement of Procedural History

The Eastland Court of Appeals affirmed Appellant’s conviction in a

unanimous opinion authored by Justice Willson that was handed down 

March 20, 2015. No motion for rehearing was filed.

Grounds for Review

1. Whether the trial court in a continuous sexual abuse case must 

instruct the jury that jurors must be unanimous as to which acts 

of sexual abuse were committed when the evidence shows only 

two but the State offers evidence of an extraneous sex offense 

that does not fit within the allegations of the indictment.

2. Whether aggravated sexual assault is both a conduct-oriented 

and a result-oriented offense.
Appellant’s PDR Page 9

Reasons for Granting Review

The Court should grant discretionary review in this appeal because the 

Eastland Court of Appeals: (1) has issued a decision that conflicts with the 

decisions of other courts of appeals; (2) has decided important questions of 

state law that have not been, but should be, settled by this Court; (3) has 

decided an important question of state law in a way that conflicts with the 

applicable decisions of this Court; and (4) has misconstrued sections 

21.02(d) and 22.021 of the Penal Code. TEX. R. APP. P. 66.3.
Appellant’s PDR Page 10

Argument

1. Whether the trial court in a continuous sexual abuse case must 

instruct the jury that jurors must be unanimous as to which acts of 

sexual abuse were committed when the evidence shows only two 

but the State offers evidence of an extraneous sex offense that does 

not fit within the allegations of the indictment.

The jury heard evidence of at least three instances when Appellant

allegedly engaged in sexual misconduct with the complainant. However, 

only two of those instances fit within the allegations of the indictment. The 

jury charge instructed the jury that it could convict if the jurors found that 

he committed two or more acts of sexual abuse and that the jurors need not 

unanimously agree as to which specific acts of sexual abuse were 

committed. Appellant argued before the Eastland Court of Appeals that 

this was error and that the trial court should have instructed the jurors that 

they must unanimously agree that he committed the only two acts of 

sexual abuse alleged in the indictment. The trial court’s failure to so 

instruct resulted in the possibility of a non-unanimous verdict. The 

Eastland Court erred by failing to require the requested unanimity 

instruction.
Appellant’s PDR Page 11

Jury Unanimity is Required by Constitution and Statute

“Under our state constitution, jury unanimity is required in felony 

cases, and, under our state statutes, unanimity is required in all criminal 

cases.” Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007) (quoting 

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

Section 21.02(d) Provides an Exception to the Unanimity Requirement

Section 21.02(d) of the Penal Code states in relevant part, “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.” TEX. PEN. CODE § 21.02(d).

This provision has withstood numerous challenges premised on the 

assertion that it violates the constitutional requirement of juror unanimity. 

See, e.g., Fulmer v. State, 401 S.W.3d 305, 313 (Tex. App.—San Antonio 2013, 

pet. ref’d); McMillian v. State, 388 S.W.3d 866, 873 (Tex. App.—Houston 

[14th Dist.] 2012, no pet.); Kennedy v. State, 385 S.W.3d 729, 732 (Tex. App.—

Amarillo 2012, pet. ref’d), cert. denied, 134 S.Ct. 681 (2013).

Section 21.02(d) Should Not Apply When Only Two Acts Are Alleged

Each of the cases cited above involved evidence of more than two acts 

of sexual abuse that fit within the allegations of the indictment. See Fulmer, 
Appellant’s PDR Page 12

401 S.W.3d at 317 (6 incidents); McMillian, 388 S.W.3d at 869-70 (at least 3 

incidents); Kennedy, 385 S.W.3d at 732 (“more than two”).

Appellant’s case is different than these because: (1) his indictment 

alleged only two acts of sexual abuse; (2) the State offered evidence of only 

two alleged incidents that fit within the allegations of the indictment; and 

(3) the trial court referred to only those two alleged incidents in the 

application section of the charge. See Kennedy, 385 S.W.3d at 732 (“Where 

the evidence supports more than two acts of sexual abuse over the specified 

time, jurors need not agree as to which individual acts were committed so 

long as they agree the defendant committed at least two.”) (emphasis 

added). 

The Fourteenth Court of Appeals discussed a similar scenario in a 

case involving section 25.11 of the Penal Code.1

 

1 Section 25.11 defines the offense of continuous violence against the family. The statute 

provides in relevant part:

A person commits an offense if, during a period that is 12 months or less in 

duration, the person two or more times engages in conduct that constitutes an 

offense under Section 22.01(a)(1) against another person or persons whose 

relationship to or association with the defendant is described by Section 71. 

0021(b), 71.003, or 71.005, Family Code.

TEX. PEN. CODE § 25.11(a).
Appellant’s PDR Page 13

The indictment alleges that appellant committed an offense 

under Section 25.11 by committing two acts of violence—one in 

November 2011 and the other in January 2012—both of which 

caused bodily injury to the same member of appellant’s family. 

If the evidence supported this most basic of allegations, a 

conviction could be had only if the jurors unanimously agreed that 

the defendant committed both component assaults against the same 

individual complainant.

Ex parte Morales, 416 S.W.3d 546, 549-50 (Tex. App.—Houston [14th Dist.] 

2013, pet. ref’d) (emphasis added).

The Jury Had to Be Unanimous as to the Only Two Offenses Alleged and 

Proved But the Trial Court Instructed Them Otherwise

Under the indictment, the evidence, and the jury charge, the jury 

heard evidence of only two alleged instances of sexual abuse that could 

form the basis for Appellant’s prosecution and sustain a verdict of guilt. 

However, the trial court instructed the jury as follows regarding 

unanimity:

With regard to element 1, you need not all agree on which 

specific acts of sexual abuse were committed by the defendant 

or the exact date when those acts were committed. You must, 

however, all agree that the defendant committed two or more 

acts of sexual abuse.

(CR at 46).
Appellant’s PDR Page 14

The State introduced evidence of an extraneous instance of sexual 

misconduct not included within the indictment, but the trial court failed to 

include any kind of limiting instruction in the charge.

This case is controlled by the analysis set forth in Morales. Because 

the indictment alleged only two incidents of sexual abuse, “a conviction 

could be had only if the jurors unanimously agreed that the defendant 

committed both component [incidents of sexual abuse].” See Morales, 416

S.W.3d at 550; see also Kennedy, 385 S.W.3d at 732.

The trial court effectively instructed the jurors that they could convict 

on the basis of any two of the three alleged instances of sexual misconduct 

without unanimously agreeing on the only two acts that could serve as the 

basis for a guilty verdict. This violated Appellant’s right to a unanimous 

jury verdict. See Pizzo, 235 S.W.3d at 719.

The Eastland Court erred by holding otherwise.

The Court Should Grant Review on This Issue

The Court should grant review of this issue for most of the reasons 

listed in Rule 66.3. See TEX. R. APP. P. 66.3.
Appellant’s PDR Page 15

The Eastland Court’s decision appears to conflict with the decision of 

the Fourteenth Court in Morales; Id. 66.3(a).

The issue of whether section 21.02(d) applies when the evidence 

shows only two acts constitutes an important question of state law that has 

not been, but should be, settled by this Court. Id. 66.3(b).

The Eastland Court’s decision appears to conflict with the applicable 

decisions of this Court, namely, Pizzo. Id. 66.3(c).

The Eastland Court’s decision appears to be based on that court’s 

improper construction of section 21.02(d). Id. 66.3(d).

For these reasons, the Court should grant this ground for 

discretionary review.
Appellant’s PDR Page 16

2. Whether aggravated sexual assault is both a conduct-oriented and a 

result-oriented offense.

The Eastland Court and the Houston [First] Court have held that 

aggravated sexual assault2is both a conduct-oriented and a result-oriented 

offense. Other courts have concluded that the offense is only resultoriented. This Court has not addressed that question in the context of 

culpable mental states. In Appellant’s case, the Eastland Court reversed 

itself and concluded that this offense is only conduct-oriented. The 

statutory language supports the Eastland Court’s prior determination 

under Baker that the statute involves both the nature of the actor’s conduct 

and the result of his conduct. The Eastland Court erred by concluding 

otherwise. This Court should grant review at minimum to resolve the 

conflict among Texas appellate courts and ensure that trial courts are 

properly instructing juries regarding the applicable culpable mental states 

for this offense.

 

2 Although the charged offense is continuous sexual abuse, the relevant culpable 

mental states are those applicable to the underlying offenses. See Lane v. State, 357 

S.W.3d 770, 776 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).
Appellant’s PDR Page 17

The Allegations Include Both Conduct- and Result-Oriented Elements

Section 22.021(a)(1)(B)(i) provides that a person commits aggravated 

sexual assault of a child if he “intentionally or knowingly . . . causes the 

penetration of the anus or sexual organ of a child by any means.” TEX. PEN.

CODE § 22.021(a)(1)(B)(i).

The indictment alleges that Appellant twice sexually assaulted the 

complainant “by intentionally or knowingly causing the penetration of the 

sexual organ of E.M. . . . by defendant’s sexual organ.” (CR 6)

Therefore, Appellant contends that the State must prove, the trial 

court must instruct, and the jury must find that he acted intentionally or 

knowingly both with respect to the result (“causing the penetration”) and 

the conduct (“by defendant’s sexual organ”). Baker v. State, 94 S.W.3d 684, 

690 (Tex. App.—Eastland 2002, no pet.); Pleasant v. State, No. 01-90-00878-

CR, 1992 WL 79686, at *3 (Tex. App.—Houston [1st Dist.] Apr. 23, 1992, pet. 

ref’d).

The Conduct Elements

Texas courts have recognized three “conduct elements” that apply to 

different offenses. Those elements are: (1) the nature of the conduct; (2) the 

result of the conduct; and (3) the circumstances surrounding the conduct. 
Appellant’s PDR Page 18

Huffman v. State, 267 S.W.3d 902, 907 (Tex. Crim. App. 2008); McQueen v. 

State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). An offense may involve 

more than one of these elements. Huffman, 267 S.W.3d at 907; McQueen, 781 

S.W.2d at 603.

Determining the requisite conduct elements that apply to a particular 

offense is important because “[i]t is error for a trial judge to not limit the 

definitions of the culpable mental states as they relate to the conduct 

elements involved in the particular offense.” Cook v. State, 884 S.W.2d 485, 

491 (Tex. Crim. App. 1994); see Chanthakoummane v. State, No. AP-75794, 

2010 WL 1696789, at *26 (Tex. Crim. App. Apr. 28, 2010). Here, Appellant’s 

complaint before the Eastland Court was that the trial court had failed to 

properly tailor the applicable definitions and instructions regarding the 

culpable mental states.

Appellate Courts are Divided on How to Classify This Offense

The Eastland Court previously determined that aggravated sexual 

assault involves two conduct elements.

We find that aggravated sexual assault of a child involves both 

result of conduct and nature of conduct elements. A person 

commits the offense of aggravated sexual assault of a child if he 

“causes the penetration of the anus or female sexual organ of a 

child by any means” or if he “causes the penetration of the 
Appellant’s PDR Page 19

mouth of a child by the sexual organ of the actor.” To cause 

“the penetration of the anus or female sexual organ” involves a 

result of conduct. “By any means” or “by the sexual organ of 

the actor” involves a type or nature of conduct.

Baker, 94 S.W.3d at 690 (Tex. App.—Eastland 2002, no pet.) (citing Pitre v. 

State, 44 S.W.3d 616, 620 (Tex. App.—Eastland 2002, pet. ref’d)) (other 

citation omitted).

The Houston [First] Court has reached the same conclusion. See

Pleasant, 1992 WL 79686, at *3.

Conversely, the Texarkana Court has treated aggravated sexual 

assault as only a result-oriented offense. See Kreitel v. State, No. 06-01-

00200-CR, 2003 WL 193493, at *3 (Tex. App.—Texarkana Jan. 30, 2003, no 

pet.).

The Corpus Christi Court, while ultimately classifying the offense as 

result-oriented, addressed the issue in an ambiguous fashion.3 See Saldivar 

v. State, 783 S.W.2d 265, 267-68 (Tex. App.—Corpus Christi 1989, no pet.)

(“aggravated sexual assault would appear to be only a ‘result’ type offense, 

 

3 Courts on both sides of the issue have looked to Saldivar to support their 

conclusions. See Kreitel v. State, No. 06-01-00200-CR, 2003 WL 193493, at *3 (Tex. App.—

Texarkana Jan. 30, 2003, no pet.); Baker v. State, 94 S.W.3d 684, 690 (Tex. App.—Eastland 

2002, no pet.); Myers v. State, No. 05-95-00842-CR, 1997 WL 36947, at *4 (Tex. App.—

Dallas Jan. 31, 1997, no pet.); Pleasant v. State, No. 01-90-00878-CR, 1992 WL 79686, at *3 

(Tex. App.—Houston [1st Dist.] Apr. 23, 1992, pet. ref’d).
Appellant’s PDR Page 20

or a mixture of ‘result’ and ‘nature of the conduct’ type offense”). The 

Dallas Court likewise addressed the issue in an ambiguous manner. See 

Myers v. State, No. 05-95-00842-CR, 1997 WL 36947, at *4-5 (Tex. App.—

Dallas Jan. 31, 1997, no pet.).

In the context of double jeopardy, this Court has held that aggravated 

sexual assault is conduct-oriented. Gonzales v. State, 304 S.W.3d 838, 847-49 

(Tex. Crim. App. 2010); Vick v. State, 991 S.W.2d 830, 832 (Tex. Crim. App. 

1999). Appellant suggests that the considerations and relevant analysis for 

determining whether an offense is conduct-oriented for purposes of double 

jeopardy are different than those employed when determining how the 

relevant culpable mental states apply to an offense.

When this Court considered a similar issue in a manslaughter case, 

Judge Maloney suggested in a concurring opinion that aggravated sexual 

assault may involve more than one conduct element. Cook, 884 S.W.2d at

493 n.5 (Maloney, J., concurring).

This Court Should Grant Review

The Court should grant review of this issue for several of the reasons 

listed in Rule 66.3. See TEX. R. APP. P. 66.3.
Appellant’s PDR Page 21

The Eastland Court’s decision appears to conflict with the decisions

of the Houston [First] Court in Pleasant, the Texarkana Court in Kreitel, and 

the Dallas Court in Myers; Id. 66.3(a).

The issue of whether aggravated sexual assault is both conductoriented and result-oriented with regard to the applicable culpable mental 

states constitutes an important question of state law that has not been, but 

should be, settled by this Court. Id. 66.3(b).

The Eastland Court’s decision appears to be based on that court’s 

improper construction of section 22.021 of the Penal Code. Id. 66.3(d).

For each of these reasons, this Court should grant this ground for 

discretionary review.
Appellant’s PDR Page 22

Prayer

WHEREFORE, PREMISES CONSIDERED, Appellant Alcenios 

Martinez a/k/a Aucensio Lopez asks the Court to: (1) grant review on the 

issues presented in this petition for discretionary review; and (2) grant such 

other and further relief to which he may show himself justly entitled.

Respectfully submitted,

 /s/ Alan Bennett

E. Alan Bennett

SBOT #02140700

Counsel for Appellant

Sheehy, Lovelace & Mayfield, P.C.

510 N. Valley Mills Dr., Ste. 500

Waco, Texas 76710

Telephone: (254) 772-8022

Fax: (254) 772-9297

Email: abennett@slmpc.com
Appellant’s PDR Page 23

Certificate of Compliance

The undersigned hereby certifies, pursuant to Rule of Appellate 

Procedure 9.4(i)(3), that this computer-generated document contains 3,371

words.

 /s/ Alan Bennett

E. Alan Bennett

Certificate of Service

The undersigned hereby certifies that a true and correct copy of this 

brief was served electronically on April 13, 2015 to: (1) counsel for the State, 

Adam Sibley at adam_sibley@mac.com; and (2) the State Prosecuting 

Attorney Lisa McMinn at lisa.mcminn@SPA.texas.gov.

 /s/ Alan Bennett

E. Alan Bennett
Appellant’s PDR Page 24

Appendix

Opinion of Eastland Court of Appeals:

Martinez v. State, No. 11-13-00080-CR, 2015 WL 1322315 (Tex. App.—

Eastland Mar. 20, 2015, pet. filed)
Opinion filed March 20, 2015

In The

Eleventh Court of Appeals __________

No. 11-13-00080-CR

__________

ALCENIOS MARTINEZ

(A/K/A AUCENSIO LOPEZ), Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 220th District Court

Comanche County, Texas

Trial Court Cause No. CR-03529

M E M O R A N D U M O P I N I O N

The jury found Alcenios Martinez, Appellant, guilty of the offense of

continuous sexual abuse of a young child.

1

 The trial court assessed punishment at

confinement for fifty years and sentenced Appellant accordingly. Appellant raises 

four issues on appeal. We affirm.

 1

TEX. PENAL CODE ANN. § 21.02 (West Supp. 2014).
2

I. The Charged Offense

The grand jury returned an indictment against Appellant for the offense of 

continuous sexual abuse of a young child. A person commits the offense of 

continuous sexual abuse of a young child if:

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

person commits two or more acts of sexual abuse . . . and

(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.

TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2014). “Sexual abuse” includes 

aggravated sexual assault. Id. § 21.02(c)(4). A person commits the offense of 

aggravated sexual assault if the person “intentionally or knowingly . . . causes the 

penetration of the . . . sexual organ of a child by any means” and if “the victim is 

younger than 14 years of age.” Id. § 22.021(a)(1)(B)(i), (a)(2)(B). Continuous 

sexual abuse of a young child is a first-degree felony, punishable by imprisonment 

for life or for “any term of not more than 99 years or less than 25 years.” Id.

§ 21.02(h).

II. Evidence at Trial

Ken Maltby, a deputy sheriff with the Comanche County Sheriff’s Office, 

testified that he received a call from Chief James Elliot of the Ranger Police 

Department about an eleven-year-old girl that had been sexually assaulted. Deputy 

Maltby identified the victim as E.M. Deputy Maltby testified that E.M. was

interviewed at the advocacy center in Eastland, Texas, and that he watched the 

interview from a closed circuit television. From the interview, he determined that 

E.M. was Appellant’s daughter and that she made allegations of sexual abuse 

against Appellant. Deputy Maltby obtained a warrant for Appellant’s arrest and

subsequently arrested Appellant. He set up an appointment for E.M. with the 
3

sexual assault nurse examiner (SANE) in Fort Worth at Cook Children’s Medical 

Center.

E.M. identified Appellant as her father. She testified that her parents split up 

when she was eight years old and that she lived with her mother. E.M. testified 

that, in November 2010 when she was ten years old, she and her brother J.M.

visited Appellant at his house on J.M.’s birthday. She said that she and her brother 

had their own bedrooms at Appellant’s house but that, on this occasion, 

Appellant’s coworker lived in J.M.’s room, and her room felt cold or hot and had 

“a bunch of cockroaches and stuff,” so both J.M. and E.M. slept in Appellant’s 

room. E.M. testified that they all slept in Appellant’s bed. She explained that 

Appellant slept on one side of the bed, that J.M. was in the middle, and that she 

slept on the other side of the bed. She testified she woke up that night when 

Appellant switched places with J.M. E.M. testified that Appellant subsequently 

pulled down her “sweats” and underwear, climbed on top of her, “put his penis into 

[her] vagina,” and “started humping [her].” She testified that neither of them said 

anything and that Appellant was “just breathing heavily.”

E.M. testified she tried to move to make Appellant think she was “starting to 

wake up” so he would stop, “but he wouldn’t.” She said he eventually stopped and 

pulled her underwear and “sweats” up. J.M. was asleep the entire time this 

happened. E.M. testified that she fell asleep after the incident and that, in the 

morning, she found a “white substance” in her underwear that was “a bit wet.” 

Neither E.M. nor Appellant talked about what happened. E.M. testified she did not 

tell her mother what happened because she was “afraid” her mother would be mad 

at her “for not telling her anything.” 

E.M. testified that, several months after this incident, she saw Appellant 

again because she wanted him to buy her a phone. She said that, while she was 

asleep in Appellant’s pickup, he “reached over and started touching [her] breast.” 
4

She moved “to the window side,” but neither she nor Appellant said anything. 

Nothing else happened that night when E.M. slept at Appellant’s house.

Sometime between July and November of 2011, E.M. and J.M. visited 

Appellant again. E.M. testified that, on this occasion, she and J.M. slept in 

Appellant’s bed, with J.M. in the middle and E.M. and Appellant on either side. 

She testified that Appellant “got out of the bed,” “went around” to where E.M. 

slept, “pushed [her] to where [J.M.] was so [J.M.] was now on the outer side,” and 

got in bed next to her. J.M. did not wake up when this happened. E.M. testified 

that Appellant faced E.M. in the bed, pulled down his pants and shorts and E.M.’s

underwear, and then “stuck his penis into [her] vagina like the - - the outer part.” 

E.M. said that she pushed Appellant away and that he immediately stopped. 

E.M. testified that she told one of her friends what had happened and that the 

friend told her mother, who called the school principal, John Thompson Jr. 

Thompson called E.M. into his office, and E.M. told him and the school counselor, 

John Olivo, what Appellant had done. Thompson subsequently called the police,

and Olivo called E.M.’s mother. E.M.’s mother came to the school, and E.M. told 

her mother what had happened. E.M. testified, “I was angry at myself for not 

telling her.” 

E.M. said she went to Eastland that same day and interviewed with Robin 

Seabourn about what had happened. She said that, sometime later, she went to 

Fort Worth, told someone else about what had happened, and received a physical 

examination. E.M. testified that she told those two people the same thing that she 

testified to at trial.

Thompson, who was the middle school principal of Ranger I.S.D. in 

February 2012, testified he had received a phone call from a student’s parent that 

E.M. “possibly was sexual[ly] assaulted.” He testified that he met with E.M. in the 

coach’s office during E.M.’s P.E. class. At that time, E.M. did not “say either 
5

way” what had happened. Thompson testified that, the next day, he received “an 

inner-office e-mail” that indicated a student had reported that someone “needed to 

probably talk to [E.M.] again.” Thompson called E.M. into Olivo’s office, and 

both he and Olivo talked with E.M. E.M. cried and reported that something sexual 

had happened with her father. E.M. said that the last time was in October or 

November of 2011. Thompson said that they called E.M.’s mother, that she came 

to the school, and that E.M. told her mother what had happened. Thompson 

testified that E.M. was “an A/B student, never a discipline problem, gets along real 

well with all of the kids, very quiet normally, just a great kid” and that he 

“wouldn’t expect her in a situation like this to make up a story like that.” 

Olivo, who was the middle school counselor in the Ranger school district in 

the spring of 2012, testified that he met with E.M in February 2012. He was 

present when E.M. told her mother what happened. He said that E.M. “was a good 

student, good grades, real personable, . . . no disciplinary things in the classroom or 

anything” and that he “didn’t see any reason not to believe . . . what she was 

saying.” 

Robin Seabourn, a forensic interviewer at the children’s advocacy center in 

Eastland, testified that she conducted a forensic interview with E.M. in February 

2012. She said that Chief Elliot scheduled the interview and that he and 

Deputy Maltby watched the interview live on a video screen in another room. 

Seabourn testified that E.M. identified the difference between the truth and a lie 

and described in detail what happened to her. Seabourn testified that E.M. 

identified Appellant as the individual who sexually abused her and that her story 

“was very consistent.” 

Rebecca Sullivan, a SANE at Cook Children’s Medical Center, testified that 

she performed a sexual abuse exam on E.M. in February 2012. She asked E.M. 

why she was there that day, and E.M. responded “because my dad abused me. He 
6

like touched me down there, my vagina, with his penis.” Sullivan asked E.M. if it 

happened once or more than once, and E.M. told her that “it happened more than 

once.” She testified that, when she asked E.M. “if any other types of contact 

happened,” E.M. said, “[W]hen we were in the car that he touched my front part 

with his hands one time . . . when I was eight or nine.” E.M. also told Sullivan that

“there was contact” with her chest on top of her clothes when they were in the car. 

Sullivan asked E.M. how old she was when the penile vaginal contact started. 

E.M. said she was ten. Sullivan testified that E.M. identified Appellant as her 

father. E.M. told her that the contact happened at Appellant’s house. E.M. also 

told her that the last time anything had happened was “over the summer, in 

September.” Sullivan testified that, based on what E.M. told her, E.M. had 

described “penetration” of her vagina by Appellant’s penis on more than one 

occasion. 

Sullivan said that E.M. had no signs of injury or trauma to her genitalia and 

that those findings were consistent with E.M.’s medical history. She testified that 

it was “actually rare” to have physical findings in a sexual abuse exam and 

explained that “most children don’t disclose right away, . . . so when we’re doing 

their exam plenty of time has passed so if there ever was an injury it’s had time to 

heal.” She stated that it was rare to diagnose sexual abuse from the exam and that 

“[t]he most important part is the history, what the child said happened.” Sullivan’s

impressions were that E.M. had been sexually abused and that she had a normal 

exam with no anal or genital trauma. She read her notes about E.M.’s demeanor 

during the exam. E.M. “was alert and oriented, cooperative” and “answered the 

questions readily and with eye contact.” 

J.R., E.M.’s mother, testified that she lived with Appellant for ten years but 

that she was never married to him. J.R. met Appellant when she was about 

fourteen years old and Appellant was about twenty-seven. Appellant was 
7

“[m]aybe” thirty-nine at the time of trial. J.R. was sixteen or seventeen when she 

had E.M., and E.M. was twelve at the time of trial. She testified that E.M. has 

never had a boyfriend and has never wanted to have a boyfriend. J.R. said that 

E.M. was not mad at Appellant when he did not buy her a new cell phone. The 

first time she heard about what Appellant did to E.M. was when she went to the 

school and met with E.M., the principal, and the counselor. J.R. testified that E.M. 

was intelligent and honest and that she had no problems with E.M. at home. 

According to J.R., E.M. is not “the type of girl that would make something like this 

up.”

Andy Hesbrook, a friend of Appellant, testified that he had known Appellant 

for about fourteen years, that Appellant was a good father, and that he had heard 

nothing negative about Appellant. Maggie Hesbrook, who described Appellant as 

her “brother-in-law’s brother,” testified that she had known Appellant for about 

twenty years, had never heard anything negative about Appellant, and believed

Appellant to be a good father.

Eladio “Billy” Martinez, Appellant’s brother, testified that he had heard 

nothing negative about Appellant and that Appellant was a good father. He last 

saw E.M. at Appellant’s house in September 2011. Esther Martinez, Appellant’s 

sister-in-law, testified that she had known Appellant for twenty-three years, that he 

was a good father, that she had heard nothing negative about him, and that E.M. 

never appeared uncomfortable around Appellant. Glenn Hodges, who had known 

Appellant for ten or twelve years, testified that Appellant’s family members were 

“real dependable, honest kind of people” and that he had heard nothing negative 

about Appellant. James Delaney, who had known Appellant for three or four 

years, testified that Appellant was honest and trustworthy. Steve Ruedas, who 

described Appellant as his “aunt’s brother,” testified that he thought Appellant was 

a good father and that he had never heard anything negative about Appellant. 
8

Appellant, through an interpreter, testified that he slept in the same bed with 

E.M. and J.M. but that “each one had their own cover.” They slept in the same bed 

because he had only one air conditioner and because his friend stayed and lived in 

the other room. Appellant testified that J.M. slept in the middle, that Appellant did 

not sleep next to E.M., and that Appellant never changed that arrangement. E.M. 

and J.M. visited him on J.M.’s birthday in November 2010, but they stayed at his 

brother’s house, each on different sofas. He remembered that E.M. last visited him 

in June 2011 “because it was one month before her birthday and she asked for a 

cell phone.” In response to his brother’s testimony regarding having seen E.M. at 

Appellant’s house in September 2011, Appellant said that his brother “doesn’t pay 

attention to the time frames” and that the September visit never occurred. 

According to Appellant, E.M. and J.M. never visited his house in November 2011. 

Appellant testified that he thought E.M. did not tell the truth because one 

time “[t]hey wanted me to pick them up and I couldn’t because I didn’t have any 

money. They only would call me, look for me when they wanted something.” He 

explained that E.M.’s testimony—that Appellant touched her breast—could not be 

true because the friend that lived with Appellant always went with Appellant when 

he went to Ranger to visit his children; the friend sat in the front seat, so E.M. 

could not have sat in the front seat. Appellant never spent time alone with his 

children because his friend that lived with him would always be with them. 

Appellant said that E.M. lied because E.M.’s mother had threatened to send her 

back to Appellant. Appellant testified, “I know that I’m innocent. [I] have not 

done anything of what I’m accused.” 

III. Issues Presented

Appellant presents four issues on appeal. He challenges (1) the sufficiency 

of the evidence to prove his guilt, (2) definitions in the jury charge, (3) instructions 
9

in the jury charge, and (4) the failure of the trial court to read its answer to the

jury’s question in open court.

IV. Standards of Review

We apply the sufficiency standard outlined in Jackson and its progeny to

Appellant’s sufficiency issue. Jackson v. Virginia, 443 U.S. 307, 318 (1979); 

Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010); Hooper v. State,

214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We review all of the evidence 

introduced by both the State and Appellant in the light most favorable to the jury’s 

verdict and decide whether any rational trier of fact could have found each element 

of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319. We measure 

sufficiency of the evidence against a hypothetically correct jury charge. Curry v. 

State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). A hypothetically correct jury 

charge “accurately sets out the law, is authorized by the indictment, does not 

unnecessarily increase the State’s burden of proof or unnecessarily restrict the 

State’s theories of liability, and adequately describes the particular offense for 

which the defendant was tried.” Id. (quoting Malik v. State, 953 S.W.2d 234, 240 

(Tex. Crim. App. 1997)). The trier of fact holds the responsibility to resolve 

conflicts in the testimony fairly, weigh the evidence, and draw reasonable 

inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. We are to 

resolve inconsistencies in the testimony in favor of the verdict. Curry, 30 S.W.3d 

at 406. 

We review an alleged jury charge error that the defendant did not object to at 

trial in two steps: We determine “(1) whether error existed in the charge; and 

(2) whether sufficient harm resulted from the error to compel reversal.” Ngo v. 

State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). We will not reverse for 

charge error “unless the record shows ‘egregious harm’ to the defendant.” Id. In 

our determination of whether an error caused egregious harm, we review the entire 
10

jury charge, the state of the evidence, the arguments of counsel, and any other 

relevant information in the record. Id. at 750 n.48. 

V. Analysis

A. Sufficiency of the Evidence

Appellant argues that the evidence is insufficient to prove that he committed 

the alleged offense. Specifically, he contends that “E.M.’s testimony was marked 

by inconsistencies; the delay in reporting and lack of physical evidence undercut 

the reliability of her testimony; E.M. had numerous motives for fabricating her 

testimony; her testimony was directly controverted by several witnesses; and her 

testimony is contrary to the evidence of [Appellant’s] good character.”

The jury could have convicted Appellant if it found beyond a reasonable 

doubt that Appellant intentionally or knowingly caused the penetration of the 

sexual organ of E.M. by his sexual organ on two separate occasions over a span of 

more than thirty days, that Appellant was at least seventeen years of age, and that 

E.M. was under the age of fourteen when both of these acts occurred. See PENAL

§§ 21.02(b), 22.021(a)(1)(B)(i), (a)(2)(B). The testimony of E.M., the forensic 

interviewer, and the SANE showed that Appellant intentionally or knowingly 

caused the penetration of E.M.’s vagina with his penis on two separate occasions 

during a period of more than thirty days in duration. Appellant was over seventeen 

years of age, and E.M. was under the age of fourteen when those acts occurred. 

E.M.’s testimony alone provides sufficient evidence to support the 

allegations that Appellant twice committed the offense of aggravated sexual assault

as alleged in the indictment and included in the jury charge. See TEX. CODE CRIM.

PROC. ANN. art. 38.07 (West Supp. 2014); Villalon v. State, 791 S.W.2d 130, 134 

(Tex. Crim. App. 1990) (concluding child victim’s unsophisticated terminology 

alone established element of penetration beyond a reasonable doubt). We disagree 

with Appellant that this case matches the hypothetical situation described in 
11

Brooks to illustrate a scenario in which the evidence would be insufficient under 

Jackson. In the hypothetical, the jury convicted “A” of robbery based upon the 

testimony of a witness who identified “A” as the robber of a convenience store, 

even though a surveillance videotape clearly showed that “B” committed the 

robbery. See 323 S.W.3d at 907. We have found no such evidence in the record. 

We have reviewed the record, and as we have previously outlined, we hold that 

sufficient evidence exists to convict Appellant of the alleged offense. See Jackson,

443 U.S. at 319. We overrule Appellant’s first issue.

B. Jury Charge Error

Appellant did not object to the jury charge at trial. Therefore, we will not 

reverse unless there is error in the charge and the error caused Appellant egregious 

harm. See Ngo, 175 S.W.3d at 743–44. Egregious harm exists if the error affected 

the very basis of the case, deprived Appellant of a valuable right, vitally affected a 

defensive theory, or caused Appellant to not have a fair and impartial trial. See 

Jourdan v. State, 428 S.W.3d 86, 97–98 (Tex. Crim. App. 2014) (quoting 

Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007)); Almanza v. State, 

686 S.W.2d 157, 171–72 (Tex. Crim. App. 1985) (op. on reh’g).

1. Culpable Mental State Definitions

Appellant challenges the definitions in the jury charge for “intentionally” 

and “knowingly.” Appellant claims that aggravated sexual assault involves both a 

“result of conduct” offense and a “nature of conduct” offense but that the jury 

charge limited the definitions to a “result of conduct” offense. Appellant cites a 

previous case out of this court in which we concluded that aggravated sexual 

assault involved both “result of conduct” and “nature of conduct” elements. 

Baker v. State, 94 S.W.3d 684, 690–91 (Tex. App.—Eastland 2002, no pet.). Since 

our opinion in Baker, however, the Court of Criminal Appeals has explicitly stated 

that aggravated sexual assault is a “nature-of-conduct” statute. Gonzales v. State, 
12

304 S.W.3d 838, 849 (Tex. Crim. App. 2010). Although more than one “conduct 

element” may apply to a single offense, in light of Gonzales, we disavow our 

analysis in Baker. 

But we need not reach this issue to resolve this case because, even if we 

assume, without deciding, that there is error in the jury charge, Appellant did not 

suffer egregious harm. At trial, Appellant did not contest his culpable mental state;

he denied any touching or penetration of E.M. Therefore, an erroneous instruction 

of the culpable mental state could not egregiously harm him. See Jones v. State, 

229 S.W.3d 489, 494 (Tex. App.—Texarkana 2007, no pet.) (holding that the 

defendant’s intent, “while it was a part of the State’s required proof, was not a 

contested issue and consequently [the defendant] could not be egregiously harmed 

by the definition of the intentional and knowing state of mind”). 

Additionally, if there is error in the jury charge, we “may consider the 

degree, if any, to which the culpable mental states were limited by the application 

portions of the jury charge” to determine egregious harm. Patrick v. State, 906 

S.W.2d 481, 492 (Tex. Crim. App. 1995) (quoting Hughes v. State, 897 S.W.2d 

285, 296 (Tex Crim. App. 1994)) (internal quotation marks omitted). The 

application portion of the jury charge instructed the jury as follows:

The first alleged act of sexual abuse is that the [Appellant] 

committed the offense of aggravated sexual assault. Aggravated 

sexual assault is an act of sexual abuse if the state proves, beyond a 

reasonable doubt, two elements. The elements are that —

a. the [Appellant] intentionally or knowingly 

caused the penetration of the sexual organ of another 

person by any means; and

b. the other person was a child . . . younger than 

fourteen years of age.
13

The instructions for the second alleged act of sexual abuse were identical to the 

instructions for the first alleged act except the words “first alleged act” were 

replaced with “second alleged act.” See PENAL § 22.021(a)(1)(B)(i). Even if we 

assume, without deciding, that the definitions of intentionally and knowingly were 

erroneous, the application section correctly instructs the jury because it follows the 

language of the statute. See id. Therefore, the jury charge caused no egregious 

harm. See Reed v. State, 421 S.W.3d 24, 30 (Tex. App.—Waco 2013, pet. ref’d) 

(“When the application paragraph correctly instructs the jury on the law applicable 

to the case, this mitigates against a finding of egregious harm.”). We hold that,

even if the definitions contained errors, those errors did not egregiously harm 

Appellant. See Ngo, 175 S.W.3d at 743–44; Reed, 421 S.W.3d at 30; Jones, 229 

S.W.3d at 494. We overrule his second issue.

2. Instructions on Unanimity

In his third issue, Appellant asserts the jury charge was erroneous in its 

instructions that the jury “need not all agree on which specific acts of sexual abuse 

were committed by the defendant” without a limiting instruction that the jury could 

only consider the two acts of sexual abuse included in the indictment and not the 

extraneous offense evidence presented regarding touching E.M.’s breast. In a 

continuous sexual abuse case, a jury need not agree unanimously on which specific 

acts of sexual abuse the defendant committed; it must only agree that the defendant 

committed two or more acts of sexual abuse over a period of thirty days or more in 

duration. PENAL § 21.02(d). Additionally, “touching . . . the breast of a child” is 

not an act of sexual abuse for purposes of the offense of continuous sexual abuse of 

a young child. Id. § 21.02(c)(2).

The jury heard evidence that Appellant touched E.M.’s breast. The jury 

charge instructed the jury that they “must all agree on elements 1, 2, 3, and 4 listed 

above,” which contained two alleged acts of aggravated sexual assault, the time 
14

frame, the age of the actor, and the age of the victim, respectively. Additionally, 

the jury charge instructed the jury that “[w]ith regard to element 1, you need not all 

agree on which specific acts of sexual abuse were committed by the defendant or 

the exact date when those acts were committed. You must, however, all agree that 

the defendant committed two or more acts of sexual abuse.” Element one only 

contained two alleged acts of sexual abuse, and both were that Appellant 

“intentionally or knowingly caused the penetration of the sexual organ of [a child]

by any means.” The jury charge contained no language related to the breasttouching incident. The State, however, referenced the breast-touching incident in 

its closing argument but also stated that the jury would not “decide whether 

[Appellant is] guilty of that offense.” The instruction that Appellant complains of

in the jury charge used substantially the same language as the statute and was not 

erroneous. See PENAL § 21.02(d).

We hold that, whether or not the charge contained any error, the charge did

not cause egregious harm because the charge properly instructed the jury that it 

must find that Appellant committed at least two of the two alleged acts of sexual 

abuse, because the charge contained no reference to the breast-touching incident, 

and because the State told the jury in argument that they would not decide whether 

Appellant was guilty of the breast-touching incident. See Ngo, 175 S.W.3d at 750 

n.48. The jury could not have been confused or mistakenly believed that it could 

convict Appellant based on the breast-touching incident. We overrule Appellant’s 

third issue.

C. Communication With the Jury

Appellant complains that the trial court erred by not reading its answer to the 

jury’s question in open court. He alleges that he did not expressly waive this right. 

See TEX. CODE CRIM. PROC. ANN. art. 36.27 (West 2006). A trial court does not 

give additional instructions when it refers the jury to the jury charge; thus, 
15

noncompliance with Article 36.27 does not result in reversible error in such a 

situation. See McFarland v. State, 928 S.W.2d 482, 517–18 (Tex. Crim. App. 

1996) (citing Nacol v. State, 590 S.W.2d 481, 486 (Tex. Crim. App. 1979)), 

overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 n.18 (Tex. 

Crim. App. 1998). The jury sent a note to the trial court and requested the dates or 

time span when the sexual abuse occurred. After discussing the jury’s note with 

the parties, the trial court ultimately referred the jury to the written instructions 

found in the jury charge and did not answer the question. Neither the State nor 

Appellant objected to the court’s actions. We hold that no reversible error 

occurred in connection with any noncompliance with Article 36.27 because the 

trial court did not further instruct the jury. See id. We overrule Appellant’s fourth 

issue.

VI. Conclusion

We hold, after a review of the record, that (1) sufficient evidence existed to 

convict Appellant of the offense of continuous sexual abuse of a young child; 

(2) the jury charge, even if it contained errors in the definitions or instructions, did 

not cause Appellant egregious harm; and (3) no reversible error occurred when the 

trial court referred the jury to the jury charge. See Jackson, 443 U.S. at 319; Ngo, 

175 S.W.3d at 743–44; McFarland, 928 S.W.2d at 517–18.

VII. This Court’s Ruling

We affirm the judgment of the trial court.

March 20, 2015 MIKE WILLSON

Do not publish. See TEX. R. APP. P. 47.2(b). JUSTICE

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.