NUMBER 13-22-00573-CR

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG 

 

SALVADOR CANUTO CRUZ, Appellant,

v. 

THE STATE OF TEXAS, Appellee.

 

On appeal from the 275th District Court 

of Hidalgo County, Texas.

 

MEMORANDUM OPINION 

Before Justices Longoria, Silva, and Peña

Memorandum Opinion by Justice Silva

Appellant Salvador Canuto Cruz appeals his conviction for aggravated sexual 

assault of a child, a first-degree felony, for which he was sentenced to twenty-five years’ 

confinement. See TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(iii), (a)(2)(B); see also id.

§ 22.021(f)(1) (requiring a minimum sentence of twenty-five years’ confinement if the 
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victim is younger than six years of age). By a single issue, Cruz argues that Texas Penal 

Code § 21.02(e) prohibited the trial court from submitting a charge for both continuous 

sexual abuse of a young child and one of the predicate offenses to the jury. See id.

§ 21.02(e) (providing that “[a] defendant may not be convicted in the same criminal action 

of a[] [predicate] offense . . . the victim of which is the same victim as a victim of the

[continuous sexual abuse] offense alleged . . . unless” one of three exceptions apply). We 

affirm.

I. BACKGROUND

A grand jury indicted Cruz for continuous sexual abuse of Luna, a child under the 

age of fourteen, between October 11, 2010, through September 1, 2013 (Count One) and 

aggravated sexual assault of Luna on or about April 3, 2012, when she was under the 

age of six (Count Two).

1 See id. § 21.02(b); id. § 22.021(a)(1)(A)(iii), (a)(2)(B). Cruz did 

not object to the indictment or seek to have either count of the indictment quashed.

The case proceeded to a jury trial. After the conclusion of evidence, the trial court 

held a charge conference outside the presence of the jury. During the conference, the 

parties and the trial court crafted the agreed upon jury charges. The trial court issued two 

jury charges. The first charge was for Count One: continuous sexual abuse of a young 

child. See id. § 21.02(b). The second charge was for Count Two: aggravated sexual 

assault of a child younger than six years old. See id. § 22.021(a)(1)(A)(iii), (a)(2)(B). Cruz 

did not object to either charge.

1 “Luna” is a pseudonym used in the indictment to protect the identity of the complainant. See TEX.

CONST. art. I, § 30(a)(1) (providing that a crime victim has “the right to be treated . . . with respect for the 

victim’s dignity and privacy throughout the criminal justice process”).
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The jury found Cruz not guilty of Count One but guilty of Count Two. Cruz elected 

for the trial court to assess his punishment, which sentenced him to twenty-five years’ 

confinement. See id. § 22.021(f)(1). Cruz filed a motion for new trial, which was overruled 

by operation of law. This appeal followed.

II. APPLICABLE LAW AND STANDARD OF REVIEW

In reviewing a challenge to a jury charge, we first must determine if the jury charge 

contained error. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). “[W]e review 

alleged charge error by considering two questions: (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). If error is found, we then analyze 

the harm resulting from the error. Id. at 743. If “an error is preserved with a timely 

objection . . . then the jury[ ]charge error requires reversal if the appellant suffered some 

harm as a result of the error.” Sanchez v. State, 376 S.W.3d 767, 774 (Tex. Crim. App. 

2012) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). “The failure 

to preserve jury[ ]charge error is not a bar to appellate review, but rather it establishes the 

degree of harm necessary for reversal.” Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. 

App. 2008). If the appellant fails to preserve jury charger error, then we review the record 

for egregious harm. Sanchez, 376 S.W.3d at 775. 

To determine harm, we consider four factors: (1) the charge itself, (2) the state of 

the evidence, including contested issues and the weight of the probative evidence, 

(3) arguments of counsel, and (4) any other relevant information revealed by the trial 

record. Villarreal v. State, 453 S.W.3d 429 433 (Tex. Crim. App. 2015). “Egregious harm 
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deprives appellant of a fair and impartial trial.” Trejo v. State, 313 S.W.3d 870, 871 (Tex. 

App.—Houston [14th Dist.] 2010, pet. ref’d) (citing Almanza, 686 S.W.2d at 171). “Charge 

error is egregiously harmful if it affects the very basis of the case, deprives the defendant 

of a valuable right, or vitally affects a defensive theory.” Servin v. State, 582 S.W.3d 629, 

631 (Tex. App.—San Antonio 2019, no pet.) (quoting Villarreal, 453 S.W.3d at 433).

“Egregious harm is a ‘high and difficult standard’ to meet, and such a determination must 

be ‘borne out by the trial record.’” Villarreal, 453 S.W.3d at 433 (quoting Reeves v. State, 

420 S.W.3d 812, 816 (Tex. Crim. App. 2013)). Regardless of the degree of harm required 

to be shown, the “appellant must have suffered actual, rather than theoretical, harm.” 

Warner, 245 S.W.3d at 461.

Texas Penal Code § 21.02(e) states that 

A defendant may not be convicted in the same criminal action of an offense 

listed under Subsection (c) the victim of which is the same victim as a victim 

of the offense alleged under Subsection (b) unless the offense listed in 

Subsection (c):

(1) is charged in the alternative;

(2) occurred outside the period in which the offense alleged under 

Subsection (b) was committed; or

(3) is considered by the trier of fact to be a lesser included offense of 

the offense alleged under Subsection (b).

TEX. PENAL CODE ANN. § 21.02(e). Subsection (b) is the primary offense of continuous 

sexual abuse of a young child, while Subsection (c) sets out the predicate offenses, 

including aggravated sexual assault under § 22.021. Id. § 21.01(b), (c); see id. § 22.021.

The court of criminal appeals 

has construed [§] 21.02(e) of the [Texas] Penal Code to prohibit the State 

from obtaining convictions for both the overarching offense of continuous 
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sexual abuse of a child and for any of the predicate offenses, listed in 

[§] 21.02(c), shown to have occurred as underlying acts of sexual abuse for 

purposes of proving that continuous sexual abuse.

Ramos v. State, 636 S.W.3d 646, 652 (Tex. Crim. App. 2021) (first citing Soliz v. State, 

353 S.W.3d 850, 853 (Tex. Crim. App. 2011) (“Aggravated sexual assault committed 

within the time frame of the indicted offense could be charged in the alternative or as a 

lesser-included offense (leading to just one conviction), but it could not be charged as an 

additional offense (leading to two convictions).”) (construing TEX. PENAL CODE ANN.

§§ 21.02(c); 21.02(e)); then citing Price v. State, 434 S.W.3d 601, 606 (Tex. Crim. App. 

2014) (“A defendant charged with continuous sexual abuse who is tried in the same 

criminal action for an enumerated offense based on conduct committed against the same 

victim may not be convicted for both offenses unless the latter offense occurred outside 

the period of time in which the continuous-sexual-abuse offense was committed.”); and 

then citing Allen v. State, 620 S.W.3d 915, 921 (Tex. Crim. App. 2021) (“[I]n determining 

whether a defendant may be convicted for a continuous abuse offense and an offense 

listed in § 21.02(c) in the same criminal action and against the same victim, the proper 

consideration is whether the evidence shows that the § 21.02(c) offense occurred outside 

of the period that the continuous abuse offense was committed.”)).

The court of criminal appeals has further noted that

§ 21.02(e) begins by saying that a defendant ‘may not be convicted’ of a 

§ 21.02(c) offense instead of ‘may not be charged.’ Thus the § 21.02(e) 

prohibition against dual convictions, and therefore any exception to 

§ 21.02(e), presupposes that the defendant has been convicted of a 

continuous abuse offense in the first place.

Allen, 620 S.W.3d at 920.
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III. ANALYSIS

Although § 21.02(e) generally applies once a defendant has been convicted of 

continuous sexual abuse, see id., thus preventing a double jeopardy violation, Cruz insists 

his complaint is not one of double jeopardy. Instead, Cruz maintains “that the jury’s verdict

of guilty as to Count Two cannot stand, because it was a predicate offense under Count 

One, and was not submitted as a lesser included offense . . . a clear violation of the

statute.” Cruz further argues that “[t]he trial court erred in allowing the State to submit the 

lesser included offense of aggravated sexual assault to the jury without following the 

procedure set forth in [§] 21.02(e).” Accordingly, we construe Cruz’s argument to allege 

charge error.

Assuming without deciding that the trial court erred by submitting both charges 

without the second charge being presented as a lesser included or in the alternative,2

see TEX. PENAL CODE ANN. § 21.02(e)(1), (3), Cruz nonetheless will not succeed as he 

failed to brief harm. See TEX. R. APP. P. 38.1(i); Wolfe v. State, 509 S.W.3d 325, 343 (Tex. 

Crim. App. 2017) (“An appellate court has no obligation to construct and compose an

appellant’s issues, facts, and arguments with appropriate citations to authorities and to 

the record.” (cleaned up)); Briceno v. State, 675 S.W.3d 87, 96 (Tex. App.—Waco 2023, 

no pet.) (finding waiver where appellant “inadequately briefed” an issue); Chaves v. State, 

630 S.W.3d 541, 558 (Tex. App.—Houston [1st Dist.] 2021, no pet.) (holding that 

appellant’s argument was waived where harm was not adequately briefed).

2 It is undisputed that the offense for Count Two occurred within the time frame of the evidence 

presented in Count One.
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Moreover, even if we were to consider harm, the court of criminal appeals has 

made it clear that § 21.02(e) operates to prohibit convictions of both continuous sexual 

abuse and one of its predicated offenses. See TEX. PENAL CODE ANN. § 21.02(e); Ramos, 

636 S.W.3d at 652; Allen, 620 S.W.3d at 920; Price, 434 S.W.3d at 606; Soliz, 353 S.W.3d 

at 853. Because Cruz was not convicted of both offenses, it would be difficult to conclude 

that he suffered egregious harm from the trial court’s failure to present Count Two in the 

alternative or as a lesser included. See TEX. PENAL CODE ANN. § 21.02(e); Sanchez, 376 

S.W.3d at 775. Cruz’s sole issue is overruled.

IV. CONCLUSION

We affirm the trial court’s judgment.

CLARISSA SILVA

Justice

Do not publish.

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

Delivered and filed on the

1st day of February, 2024.