NUMBER 13-19-00420-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

 

JOSEPH TAMEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 148th District Court 

of Nueces County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Tijerina

Memorandum Opinion by Justice Longoria

In August 2019, a jury found appellant Joseph Tamez guilty of continuous sexual 

assault of a child, a first-degree felony. See TEX. PENAL CODE ANN. § 21.02. Tamez was 

sentenced to forty years’ imprisonment in the Correctional Institutions Division of the 

Texas Department of Criminal Justice. On appeal, Tamez alleges the jury charge 

contained error resulting in egregious harm as it: (1) allowed him to be convicted of 
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continuous sexual assault of a child based on a single predicate offense; and (2) 

improperly defined the mental states applicable to the predicate offenses. We affirm.

I. BACKGROUND

Tamez was indicted for continuous sexual abuse of a child. See id. The indictment 

alleged

[Tamez], [did] then and there in Nueces County, Texas, during a period that 

was 30 days or more in duration, to-wit: from on or about April 5, 2015 

through March 19, 2016, when [Tamez] was 17 years of age or older, 

commit two or more acts of sexual abuse against [C.L.1], a child younger 

than 14 years of age, namely:

Indecency with a child under section 21.11(a)(1), namely, did then and there 

with the intent to arouse or gratify the sexual desire of [Tamez], engage in 

sexual contact with [C.L.], hereafter styled the complainant, by touching the 

female sexual organ of the complainant, a child younger than 14 years of 

age,

AND/OR

Aggravated Sexual Assault of a Child under section 22.021, namely, did 

then and there intentionally or knowingly caus[e] the penetration of the 

female sexual organ of [C.L.], a child who was then and there younger than 

14 years of age, by [Tamez’s] sexual organ, against the peace and dignity 

of the State.

At trial, V.G. testified that she had previously been married to Tamez, and C.L. is 

her daughter from a previous relationship. She and Tamez had two children together, 

E.T. and P.T. The family lived together in Corpus Christi. V.G. staetd that she worked 

night shifts at a hospital and Tamez would stay home to care for the children. 

V.G. explained that on March 19, 2016, she and Tamez were laying in bed with 

1 We refer to the minor victim, her mother, and her siblings by initials to protect their identities. See

TEX. R. APP. P. 9.8(b)(2).
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E.T. and P.T. in the master bedroom when V.G. suggested that the children leave the 

room to play video games and E.T. refused, stating: “Every time we go play the game 

[Tamez] and [C.L.] lock the door.” After E.T. and P.T. left the room, V.G. confronted 

Tamez about what E.T. meant by her statement, and Tamez told her that C.L. sometimes 

used the master bedroom to “get away from the kids” and “to watch T.V.” C.L. was at her 

grandfather’s house when this conversation took place.

According to V.G., when C.L. returned later that day, V.G. asked her about E.T.’s 

statement. C.L. initially denied anything had happened, but, with Tamez present, V.G. 

directly asked C.L. if Tamez “was doing something to her that he wasn’t supposed to be 

doing,” and C.L. said “yes.” V.G. stated that C.L. told her that Tamez “would have sex 

with her” when V.G. was at work. Upon hearing this, V.G. called her stepmother and had 

her call the police so that Tamez did not hear her on the phone with the police. The police 

arrived and arrested Tamez. V.G. was instructed to take C.L. for a sexual assault nurse 

examination (SANE) and to the Children’s Advocacy Center (CAC). V.G. admitted that 

after his arrest, she saw Tamez when “bills were due” and continued to have sexual 

relations with him. 

C.L. testified that Tamez first began sexually assaulting her when she was in the 

third grade, about eight years of age. She explained that the first time it happened, she 

was watching television with her siblings and Tamez told her to go to his room. She 

complied, but Tamez still grabbed her by the wrist and took her to the room. When she 

got into the room, he locked the door, “threw [her] on the bed,” and “forced [her] clothes 

off,” though she tried to keep them on. Tamez then began touching “[her] chest, [her] 
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middle area, and [her] back.” C.L. explained that she referred to the area “where [she] 

usually use[s] the bathroom” to “pee” as her “middle area.” C.L. said Tamez then got on 

top of her and “took out his middle part as well and started touching [her] with that” on the 

“inside” and “outside” of her “middle part.” When Tamez stopped, he told her “to get up 

and go get in the shower,” which she did. C.L. stated that it happened “every day 

whenever [her mother] was at work” starting when she was in third grade and stopping 

when she was in fourth grade. C.L. also detailed a time that Tamez made her “rub” his 

“middle part” while in the restroom and another time when Tamez made her get on top of 

him, and “his middle part was in [hers] and he would slide his hands down [her] back to 

[her] butt.” She recalled he would put a “kind of plastic” on his “middle part” that was “see 

through.” She has since learned that what she saw was a condom, and Tamez would 

flush it down the toilet after. Tamez told her not to tell her mother. C.L. did not tell anyone 

what had happened because she was afraid to get in trouble or that Tamez would “hurt 

[her] or them.” 

Once she told her mother what was happening, the police arrested Tamez. She 

recalled seeing a nurse at the hospital for an examination and talking to a counselor at 

the CAC about what happened. She filled out diagrams of the male and female bodies to 

explain where Tamez touched her. 

Tamez testified that he has denied the allegations from the start. He stated that he 

never touched C.L. inappropriately, that the accusations made him “uncomfortable, very 

shocked, very, very emotional,” and he questioned why he would be accused of the things 

C.L. asserted. He testified that there had been a time that he and C.L. were in his bedroom 
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with the door locked, but it was because C.L. wanted to get her cell phone back after 

being punished and having it taken away.

Tamez explained his relationship with V.G. was good, but she often gave him 

“ultimatums” and threatened to leave and take the children away from him. He testified 

that V.G. was manipulative and would lie to get her way. Both Tamez and V.G. testified 

that they got married because V.G. gave him an ultimatum.

Tamez was convicted of continuous sexual assault of a child, and the trial court 

sentenced him to forty years’ imprisonment. Tamez filed a motion for new trial which was 

denied, and this appeal followed.

II. JURY CHARGE

In two issues, Tamez alleges that the jury charge contained error resulting in 

egregious harm. First, Tamez argues that the jury charge allowed the jury to convict him 

for “a series of abuses” based on a single predicate offense. He also contends that the 

charge incorrectly defined the culpable mental states applicable to the offense for which 

he was charged.

A. Standard of Review

Our first duty in analyzing an alleged jury-charge error is to determine whether 

error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If we find error, 

then the standard of review for assessing harm “depends on whether the error was 

preserved.” Gonzalez v. State, 610 S.W.3d 22, 27 (Tex. Crim. App. 2020) (citing Jordan 

v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020)); see Almanza v. State, 686 S.W.2d 

157, 171 (Tex. Crim. App. 1985). Where, as here, error was not preserved with a timely 
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objection, such error is only reversible if we determine the error “caused the defendant 

‘egregious harm.’” Gonzalez, 610 S.W.3d at 27. “Errors that result in egregious harm are 

those that affect the very basis of the case, deprive the defendant of a valuable right, or 

vitally affect a defensive theory.” Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 

2006).

B. Continuous Sexual Abuse

Texas Penal Code § 21.02(b) provides:

(b) 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

(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) 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; or

(B) a disabled individual.

TEX. PENAL CODE ANN. § 21.02. Aligned with the indictment, the jury charge instructed the 

jury, in relevant part, that:

You must determine whether the state has proved, beyond a reasonable 

doubt, four elements. The elements are that—

1. [Tamez], in Nueces County, Texas, during a period between on or 

about April 5, 2015 through March 19, 2016, committed two or more 

of the following alleged acts of sexual abuse:

1. did, with the intent to arouse or gratify the sexual desire of 

[Tamez], engage in sexual contact with [C.L.] by touching the 

female sexual organ of [C.L.]; AND/OR
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2. did intentionally or knowingly cause the penetration of the 

female sexual organ of [C.L.] by [Tamez’s] sexual organ

2. these acts were committed during a period that was thirty or more 

days in duration; and

3. at the time of commission of each of the acts of sexual abuse 

[Tamez] was seventeen years old or older; and

4. at the time of commission of each of the acts of sexual abuse the 

victim, [C.L.], was a child younger than fourteen years old.

You must all agree on elements 1, 2, 3, and 4 listed above. With regard to 

element 1, you need not all agree on which specific acts of sexual abuse 

were committed by [Tamez] or the exact date when those acts were 

committed. You must, however, all agree that [Tamez] committed two or 

more acts of sexual abuse. With regard to element 2, you must all agree 

that at least thirty days passed between the first and last acts of sexual 

abuse committed by [Tamez].

Tamez asserts that the jury charge allowed the jury to convict him based on one 

alleged offense because it “lack[ed] a specific manner and means for the indecency 

predicate offense, authorize[d] conviction based on an instance of indecency by touching 

[C.L.’s] female sexual organ with [Tamez’s] sexual organ, and an instance of aggravated 

sexual assault by penetration of [C.L.’s] female sexual organ by [Tamez’s] sexual organ.” 

Tamez’s argument in this regard focuses solely on one occasion of abuse testified to by 

C.L.—the first instance of sexual abuse she discussed. Specifically, it appears his 

contention is that without a specified manner and means for the indecency offense, the 

jury would have been able to convict him for both indecency with a child and aggravated 

sexual assault for one instance of abuse. The charge, however, instructs the jury to find 

Tamez guilty only if the jury agrees that he committed two or more acts with at least thirty 

days between the first and last acts. This instruction requires the jury to find Tamez 
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committed two, separate acts of sexual abuse at least thirty days apart. The language of 

the charge, therefore, tracks the penal code and requires the jury to find that Tamez 

committed multiple acts over a course of more than thirty days; it does not allow for the 

jury to convict Tamez for one predicate offense. See TEX. PENAL CODE ANN. § 21.02; 

Ramos v. State, 264 S.W.3d 743, 754 (Tex. App.—Houston [1st Dist.] 2008), aff’d, 303 

S.W.3d 302 (Tex. Crim. App. 2009) (finding no error in the charge where the jury charge 

set out the essential elements of the charged offense).

Tamez also alleges that the charge violated the Double Jeopardy Clause of the 

Fifth Amendment as it allowed him to be punished for both a greater and lesser included 

offense. See Bien v. State, 550 S.W.3d 180, 184–85 (Tex. Crim. App. 2018). The Double 

Jeopardy Clause of the Fifth Amendment, which is applicable to the states through the 

Fourteenth Amendment, protects a person from multiple punishments for the same 

offense. U.S. CONST. amends. V, XIV; Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim. 

App. 2014). “In the multiple-punishments context, two offenses may be the same if one 

offense stands in relation to the other as a lesser-included offense, or if the two offenses 

are defined under distinct statutory provisions but the Legislature has made it clear that 

only one punishment is intended.” Littrell v. State, 271 S.W.3d 273, 275–76 (Tex. Crim. 

App. 2008); Carmichael v. State, 505 S.W.3d 95, 100 (Tex. App.—San Antonio 2016, pet. 

ref’d). Tamez however, was convicted of and received one punishment for the single 

offense of continuous sexual abuse of a child.

Accordingly, the trial court did not err in its submission of the jury charge as it 

relates to the application of the law. See Gonzalez, 610 S.W.3d at 27. We overrule 
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Tamez’s first issue.

C. Mental State Definitions

Tamez also complains that the jury charge improperly defined the mental states 

applicable to the predicate offenses. Specifically, he states that the jury charge provides 

the definitions of “intentionally” and “knowingly” in a “result of conduct” fashion rather than 

a “nature of conduct” fashion as the charges against him required. 

The Texas Court of Criminal Appeals has explicitly stated that aggravated sexual 

assault is a “nature-of-conduct” statute. Gonzales v. State, 304 S.W.3d 838, 849 (Tex. 

Crim. App. 2010). Accordingly, the jury charge should have defined the terms as follows: 

A person acts intentionally with respect to the nature of his conduct when it 

is his conscious objective or desire to engage in the conduct. A person acts 

knowingly with respect to the nature of his conduct or to circumstances 

surrounding his conduct when he is aware of the nature of his conduct or 

that the circumstances exist.

See TEX. PENAL CODE ANN. § 6.03(a), (b). Instead, the charge defined the terms as 

follows:

A person acts “intentionally,” or with “intent,” with respect [to] a result of his 

conduct when it is his conscious objective or desire to engage in the conduct 

or cause the result.

A person acts “knowingly,” or with ‘knowledge,” with respect to a result of 

his conduct when he is aware that his conduct is reasonably certain to 

cause the result.

See id.

Even if we assume, without deciding, that there is error in the jury charge related 

to the mental state definitions, Tamez did not suffer egregious harm. At trial, Tamez did 

not contest his culpable mental state; instead, he denied any touching or penetration of 

C.L. Therefore, an erroneous instruction of the culpable mental state could not 
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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 . . . 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”); see 

also Martinez v. State, No. 11-13-00080-CR, 2015 WL 1322315, at *6 (Tex. App.—

Eastland Mar. 20, 2015, pet. ref’d) (mem. op., not designated for publication) (finding 

defendant was not egregiously harmed where the jury charge contained the “result of 

conduct” rather than “nature of conduct” definitions in an aggravated sexual assault case 

because the defendant did not contest intent, but rather denied the allegations against 

him).

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). Even if the definitions of intentionally and knowingly 

were erroneous, the application section correctly instructs the jury because it tracks the 

language of the statute. See TEX. PENAL CODE ANN. § 21.02. This supports a finding of 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 [militates] against a finding of egregious harm.”); see also Martinez, 2015 

WL 1322315, at *6. We hold that, even if the definitions contained errors, those errors did 

not egregiously harm Tamez. See Ngo, 175 S.W.3d at 743–44; Reed, 421 S.W.3d at 30; 
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Jones, 229 S.W.3d at 494; see also TEX. R. APP. P. 44.2 (standard for reversible error in 

criminal cases). We overrule Tamez’s second issue.

III. CONCLUSION

We affirm the judgment of the trial court.2

NORA L. LONGORIA 

Justice

Do not publish.

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

Delivered and filed on the

17th day of March, 2022. 

2 Currently pending before this Court are two motions: (1) attorney Guy Williams’s motion to 

withdraw as counsel, and (2) attorney Travis Berry’s motion to withdraw as counsel. Williams was appointed 

to represent appellant on September 12, 2019, and filed a brief on behalf of Tamez, in which he sought to 

withdraw. On June 3, 2021, this Court abated this matter for a determination of whether new counsel should 

be appointed to Tamez given a potential conflict of interest raised regarding Williams’s representation. The 

trial court appointed new counsel, replacing Williams in this matter. Subsequently, appointed counsel 

withdrew and was replaced by Berry. Berry subsequently sought to withdraw, and the trial court appointed 

new counsel who filed a brief on the merits on behalf of Tamez. Accordingly, we grant Williams’s and Berry’s 

motions to withdraw.