Opinion issued July 18, 2023.

In The

Court of Appeals 

For The

First District of Texas 

————————————

NO. 01-21-00646-CR

———————————

DAVID IGNACIO CRISTAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 56th District Court

Galveston County, Texas

Trial Court Case No. 19-CR-1313

MEMORANDUM OPINION

A jury found appellant David Ignacio Cristan guilty of the felony offense of 

continuous sexual abuse of a child and assessed his punishment at ninety-nine years’
2

imprisonment.

1

 In his sole issue on appeal, Appellant argues the trial court abused 

its discretion by submitting a jury charge that did not properly instruct the jury on 

the law applicable to the case. 2 

We affirm the trial court’s judgment. 

Background

Appellant David Ignacio Cristan (“Cristan”) was charged by indictment with 

three felony offenses involving two minors, A.D. (“Amy”) and J.D. (“Julie”).3 As 

to Amy, Cristan was charged by indictment with the felony offense of continuous 

sexual abuse of a child (trial court cause number 19-CR-1313) and sexual assault of 

a child (trial court cause number 19-CR-2275). Cristan was also charged by 

indictment with the felony offense of continuous sexual abuse of a child against 

Amy’s sister, Julie (trial court cause number 19-CR-1312). Cristan pleaded not 

guilty to all three charges.

1 TEX. PENAL CODE § 21.02(h) (“An offense under this section is a felony of the first 

degree, punishable by imprisonment in the Texas Department of Criminal Justice 

for life, or for any term of not more than 99 years or less than 25 years.”).

2 Cristan is not challenging the sufficiency of the evidence supporting his conviction 

for continuous sexual abuse of a child.

3

In this opinion, we refer to the child complainants and their family members by 

pseudonyms to protect their privacy. See TEX. CONST. art. 1, § 30(a)(1) (granting 

crime victims “the right to be treated with fairness and with respect for the victim’s 

dignity and privacy throughout the criminal judicial process”).
3

A. Detective Reynolds

Detective Jimmie Reynolds with the Texas City Police Department 

(“Detective Reynolds”) testified he became involved in the investigation of the case 

after Carmella Archibald with Children’s Protective Services (“CPS”) told him she 

was involved in a case within his jurisdiction in Texas City, Texas. After the initial 

report, Detective Reynolds learned that the alleged sexual assaults of the two young 

girls had occurred in Texas City and La Marque, Texas. According to Detective 

Reynolds, the resulting investigation was a joint effort between the Texas City Police 

Department and La Marque Police Department because some of the alleged sexual 

assaults had occurred in La Marque. 

Amy and Julie, the two complainants, were interviewed at the Child Advocacy 

Center in Galveston, Texas (“CAC”) by forensic interviewers Cheryl McCarty and 

Kim Keever. Detective Reynolds, who was present for both interviews, testified that 

Amy and Julie both made outcries of sexual abuse and identified Cristan as the 

alleged perpetrator. 

Detective Reynolds and Detective Smith (“Detective Smith”), Detective Larry 

Crow (“Detective Crow”), and Officer Stephen Leacroy (“Officer Leacroy”) with

the La Marque Police Department visited Cristan’s house in La Marque to speak to 

him and execute a search warrant. Detective Crow with the La Marque Police 

Department collected several items from Cristan’s house including several cell
4

phones and a DVR that was connected to several cameras in the home. According 

to Detective Reynolds, one of the cell phones had been hidden in the bathroom. 

After completing the search, Detective Reynolds talked to Cristan and arranged for 

him to come to the station the following Monday. 

That following Monday, Detective Reynolds learned that Cristan had been 

taken to the hospital because he had attempted suicide. Detective Smith and 

Detective Reynolds visited the hospital the next day to speak with Cristan. Detective 

Reynolds testified that after Cristan agreed to speak with them, he questioned Cristan 

about the events in Texas City, while Detective Smith inquired about the events in 

La Marque. According to Detective Reynolds, Cristan would “just get real loud” in 

response to some of his questions and Cristan would make excuses and claim “I 

don’t remember because I black out.” 

Cristan’s interview was captured by Detective Reynolds’ body camera, which 

was sitting on a nearby table in the hospital room. The recording was admitted into 

evidence as State’s Exhibit 1 and played for the jury. 

During the interview, Cristan told the Detectives that he lived with his mother 

and his wife (“Michelle”), and her three children, Amy, Julie, and their younger 

brother (“Eddie”). Cristan admitted that Amy was his favorite child. According to 

Cristan, he and Michelle shared a bedroom with Amy, Julie, and Eddie at their home 
5

in La Marque. Cristan and Michelle slept on the bed and the children shared an air 

mattress. 

When the Detectives asked Cristan if he had anything to say about the sexual 

abuse allegations Amy and Julie had made against him, Cristan shook his head

indicating “no.” The Detectives asked Cristan what he thought about Amy and Julie 

making these allegations against him and Cristan answered, “I don’t know.” Cristan 

told the Detectives he did not know why Amy and Julie claimed he had sexually 

abused them. 

Cristan told the Detectives that he blacks out once a day and he only 

remembers some things. When asked to explain when he blacks out, Cristan said, 

“the other half of my life when all of this stuff happened, supposedly.” The 

Detectives asked Cristan to clarify whether he was denying the allegations of sexual 

abuse or he was saying the sexual abuse could have occurred, but he was unsure 

because he regularly blacks out. Cristan responded, “I don’t know because I black 

out a lot. So I seriously don’t know.” He told the Detectives that “when I get real 

horny and black out and go to the restroom and try to finish and I end up being in 

there for 5-6 hours and I can’t finish.” When asked if he remembered what happens

before he blacks out, Cristan responded, “You are so horny it is like a blur; you try 

to put it in something.” The Detectives asked Cristan, “[w]hen you get so horny that 
6

everything is blurry, do you think you could have grabbed” Julie or Amy? Cristan

started crying and replied, “I don’t know. I am just thinking if I did or not.”

When asked why he placed a cell phone in the bathroom, Cristan claimed he 

did so to hear what his family members were talking about.4 He admitted the cell 

phone recorded both audio and video but claimed that the phone was positioned such 

that “you can’t see nothing.” Cristan, who denied taking inappropriate pictures of 

Amy and Julie, told the Detectives that one time Amy found him watching 

pornography on his cell phone. 

Detective Reynolds also briefly interviewed Cristan’s wife, Michelle. 

Michelle was cooperative and she did not tell Detective Reynolds anything that 

conflicted with Amy’s and Julie’s statements during their forensic interviews at the 

CAC. Detective Reynolds testified that when he asked Michelle if she knew Amy 

and Julie were being sexually assaulted, Michelle became visibly upset and denied 

knowing about the abuse. She then told Detective Reynolds that she did not want to 

talk to him about her daughters’ sexual abuse allegations and she ended the 

interview. At trial, Detective Reynolds identified Cristan. 

4 Cristan also told the Detectives that Amy and Eddie, who were very close, appeared 

to be hiding something from him and he placed the cell phone in the bathroom 

because he suspected Eddie and Amy were having an inappropriate relationship. 
7

B. Detective Crow

Detective Crow was with Detectives Reynolds and Smith when they executed 

the search warrant at Cristan’s house. Detective Crow testified he photographed the 

scene and collected six cell phones, a monitor, and a DVR during the search. 

According to Detective Crow, they found one cell phone on Cristan’s bed, four cell 

phones between the mattress and the wall, and one cell phone in the bathroom.

C. Officer Leacroy

Officer Leacroy prepared the search warrants for the cell phones collected 

during the search of Cristan’s residence. When he reviewed the contents of the cell 

phone found in the bathroom, Officer Leacroy found multiple photographs of what 

appeared to be a naked female juvenile in a bathroom. Officer Leacroy also 

reviewed the phone’s browser history where he found a link for a surveillance 

camera application that connects two cell phones to create a live surveillance feed, 

and also saves videos. When he clicked on the link, Detective Leacroy found a video 

of a naked female juvenile similar to the female in the photographs from the cell 

phone. According to Detective Leacroy, the female subject appeared to have just 

gotten out of the shower and she was getting dressed. The video appeared to have 

been taken in the same bathroom as the photographs. Detective Leacroy believed it 

was “the juvenile that was in the report.”
8

D. Julie

Julie, who was seventeen years old at the time of trial, testified next. She 

testified she was five or six years old when she met Cristan, whom she calls her 

stepfather. Julie testified that she, Amy, and Eddie lived with their maternal 

grandparents during the week, and they stayed with their mother and Cristan on the 

weekends. According to Julie, her mother and Cristan initially lived with Cristan’s 

mother in La Marque, then they moved to some apartments in Texas City, and they 

eventually moved back into Cristan’s mother’s home in La Marque. Julie testified 

that Cristan began touching her inappropriately when Cristan and Michelle were first 

living with Cristan’s mother in La Marque, before they moved to Texas City. Julie 

was nine or ten years old when Cristan first touched her. According to Julie, she 

was lying in bed with her siblings when Cristan grabbed her wrist and made her 

touch his penis through his clothes before she could pull her hand away. Later that 

morning, Cristan told her he did not mean to do it and he was sorry. Cristan also 

asked her not to tell anyone because “he was afraid of going back to jail.” Julie 

testified about a second occurrence of sexual abuse, when Cristan put his hand down 

Julie’s pants and touched her butt over her underwear. 

The third instance of sexual abuse occurred when Michelle and Cristan were 

living in a two-bedroom apartment in Texas City. According to Julie, Cristan got 

into bed with her one Christmas Eve, and he touched her on her chest under her 
9

clothes, and then he put his hand down her pants and touched her butt and vagina 

over her underwear. Julie testified that later that evening, Cristan “pulled out his 

penis or he was grabbing and like moving it around.”

Another time, Cristan, Michelle, and the three children were sleeping in the 

same room at the apartment when Cristan “tried to touch [Julie’s] vagina through 

the clothes again.” On another occasion, Cristan and Julie were in the living room 

when Cristan pulled Julie’s head close to his body and rubbed her face against his

penis over his clothes. 

Julie testified that the abuse happened “[a] lot. I don’t really have a number, 

but I know it was more, like a lot that it happened.” She explained that although 

Cristan abused her while they were living in his mother’s home in La Marque, most 

of the abuse occurred in Cristan’s and Michelle’s apartment in Texas City. Julie 

described other instances when Cristan sexually abused her in more detail on redirect 

examination.

Julie also testified that she did not tell anyone that Cristan had sexually 

abused her until Amy told someone that she had also been abused by Cristan. Julie 

testified she was scared of what Cristan would do if she told. According to Julie, 

she was scared because Cristan would get angry sometimes and she had seen “what 

he did” to her mother Michelle when he was angry. Julie never saw Cristan touch 

Amy inappropriately.
10

E. Amy

Amy, who was seventeen years old at the time of trial, testified next.5 Amy 

testified she was four or five years old when she first met Cristan, her stepfather. 

Amy and her siblings, Julie and Eddie, lived with their maternal grandparents during 

the week and they stayed with their mother Michelle and Cristan on the weekends.

When Amy was fourteen years old, she told her best friend that Cristan had 

sexually assaulted her, and Amy’s friend encouraged her to tell her school counselor. 

Amy told her school counselor the same day and Amy told her mother about the 

abuse when she got home from school. When asked to describe the most recent

event of sexual abuse prior to her talking to her counselor, Amy testified that one 

Sunday morning Cristan pulled down her pants while they were alone in the kitchen

at the house in La Marque and he started touching her vagina with his hand and then 

with his penis. According to Amy, he rubbed his naked penis between her legs and 

against the “outside” of her vagina. When she told him to stop, Cristan told her that 

it was the only way they could be alone together. Amy pulled up her pants when 

Cristan let her go and she ran to the staircase. When she looked back, Cristan “was 

right there again and did the exact same thing.”

5 Amy, who is ten months younger than Julie, turned seventeen a few days before 

trial.
11

Amy testified that Cristan sexually assaulted her on other occasions. The first

incident Amy testified to occurred when she was in the seventh grade. According 

to Amy, she went to the apartment in Texas City one weekend without her siblings,

who had decided to stay at their grandparents’ home. Cristan crawled into bed with 

Amy one night and pulled her pants down while she was sleeping. Amy woke up 

while Cristan was rubbing his penis on the “outside” of her vagina.

Amy testified that this was not the first time Cristan had touched her vagina. 

When asked to discuss the next time she recalled Cristan touching her, Amy testified 

that Cristan touched her breasts with his hands, and while she did not “remember a 

specific occasion,” she “remember[ed] him putting his hands on [her] breast.” When 

asked whether Cristan touched her vagina with his hand over her clothes or under 

her clothes, Amy testified, “Both. Some occasions it was over. Some occasions it 

was under.”

When asked if Cristan had done anything else inappropriate with her, Amy 

responded that Cristan “made me put my mouth on his penis.” When asked how 

often this occurred, Amy testified, “Not as much as him touching me.” Amy 

clarified that Cristan put the “[i]nside of my mouth on his penis.” According to 

Amy, this happened at the house in La Marque and the apartment in Texas City. 

Cristan also showed her pornography “on some occasions” at both locations. 

Amy did not remember Cristan ejaculating when he made her touch his penis. 
12

According to Amy, “[o]nly he would make himself ejaculate” and he would do that 

when he was touching her. Amy testified that the sexual abuse occurred in the living 

room and her bedroom in the apartment and in the living room of the house in La 

Marque. Although some of the abuse occurred when other people were in the room, 

“it was under covers so no one could see it happening.” Amy further testified that 

Cristan sexually assaulted her from the age of five or six until she was fourteen and 

the assaults occurred every weekend she stayed with him and her mother. 

Amy also testified that Cristan told her not to tell anyone, including Michelle, 

because he did not want to go to jail. Amy testified that when she asked Cristan why 

he was doing these things to her, Cristan told her he did it with her “because my

mom wouldn’t do it with him.” Amy never told Michelle about the abuse because 

she did not want Cristan and Michelle to get into an argument. Although she never 

saw Cristan hit Michelle, Cristan would yell at Michelle and it scared Amy when 

Cristan and Michelle argued. According to Amy, she, Julie, and Eddie were “all 

scared of” Cristan.

Amy also testified that she was the girl in the photographs and video found on 

Cristan’s phone. Amy never saw Cristan touch Julie inappropriately.

F. Tilda Bustamante

Tilda Bustamante (“Bustamante”), Cristan’s mother, testified in his defense.

According to Bustamante, Cristan and Michelle “became a family” in 2006 and the 
13

couple initially lived with her at her home in La Marque. At some point, Michelle 

and Cristan moved to an apartment in Texas City, but they later moved back into 

Bustamante’s home in La Marque. When Michelle and Cristan lived with 

Bustamante, Amy, Julie, and Eddie would stay at Bustamante’s home on the 

weekends. According to Bustamante, the children were happy to be in her home on 

the weekends, and she did not see, nor was she concerned about Cristan’s conduct 

towards the children.

The jury found Cristan (1) not guilty of the felony offense of continuous 

sexual abuse of a child against Julie, (2) guilty of the felony offense of sexual assault 

of a child against Amy, assessing his punishment at confinement for twenty years’ 

imprisonment; and (3) guilty of the felony offense of continuous sexual abuse of a 

child against Amy, assessing his punishment at confinement for ninety-nine years’ 

imprisonment. In this appeal, Cristan challenges his conviction for the felony 

offense of continuous sexual abuse of a child against Amy.

6

Charge Error

In his sole issue on appeal, Cristan argues the trial court abused its discretion 

by submitting an erroneous jury charge during the guilt-innocence phase of his trial. 

6 Cristan also appealed the trial court’s judgment for the felony offense of sexual 

assault of a child against Amy. On December 22, 2022, this court affirmed the trial 

court’s judgment in that case. See Cristan v. State, No. 01-21-00647-CR, 2022 WL 

17835670, at *1 (Tex. App.—Houston [1st Dist.] Dec. 22, 2022, no pet.) (mem. op., 

not designated for publication). 
14

He argues that the application paragraph in the jury charge incorrectly instructed the 

jury that the act of touching Amy’s sexual organ with his finger constituted the 

offense of aggravated sexual assault, as opposed to indecency with a child by 

contact. According to Cristan, the abstract paragraphs in the charge are also 

misleading and contain numerous misstatements of law because (1) the included 

definition of “act of sexual abuse” is limited to the offense of aggravated sexual 

assault of a child and does not include indecency with a child by contact, (2) three 

factual scenarios are defined accurately to constitute the offense of aggravated 

sexual assault of a child, (3) the charge does not define “any offense in which the 

actor contacts the sexual organ of a child with the hand of the actor,” (4) the charge 

does not define the offense of indecency with a child by contact, and (5) the charge 

does not define “sexual contact,” which is an element of the offense of indecency 

with a child by contact. Cristan argues these “combined errors permitted the jury to 

convict [Cristan] on incorrect theories of law” and raised the possibility that 

“individual jurors could have convicted [Cristan] of the offense of Continuous 

Sexual Abuse of a Child without requiring the State to prove all of the elements of 

the offense.” Cristan argues he was egregiously harmed because the combined 

errors in the charge “affect[ed] the very basis of the case” and deprived him of a fair 

trial.
15

The State, which concedes there was error in the charge, argues there is no 

reversible error because Cristan was not egregiously harmed by the errors. The State 

argues the errors were not calculated to injure Cristan’s rights and Cristan’s trial was

fair and impartial.

A. Standard of Review

We review potential jury charge error using a two-step review to determine 

whether reversal is required. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 

2005); Vernon v. State, 571 S.W.3d 814, 826 (Tex. App.—Houston [1st Dist.] 2018, 

pet ref’d). We first decide whether error exists in the charge. Ngo, 175 S.W.3d at 

744. If we determine an error exists, we next determine whether sufficient harm 

resulted from the error requiring reversal. Id. The level of harm necessary for 

reversal depends on whether the appellant properly objected to the error. Abdnor v.

State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994). When, as here, an appellant 

fails to preserve error, we review the charge error under the “egregious harm”

standard articulated in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). 

See Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020) (citing Almanza, 

686 S.W.2d at 171).

“Egregious harm is a high and difficult standard to meet, and such a 

determination must be borne out by the trial record.” Villarreal v. State, 453 S.W.3d 

429, 433 (Tex. Crim. App. 2015) (internal quotation omitted). Neither party bears 
16

the burden to show harm or lack thereof. Marshall v. State, 479 S.W.3d 840, 843 

(Tex. Crim. App. 2016). Rather, the appellate court must examine the relevant 

portions of the entire record to determine whether an appellant suffered actual, as 

opposed to theoretical harm, as a result of the charge error. Id.

When assessing whether an appellant suffered egregious harm as a result of 

the charge error, courts consider (1) the entire jury charge, (2) the state of the 

evidence, including the contested issues and weight of probative evidence, (3) the 

argument of counsel, and (4) any other relevant information revealed by the record 

of the trial as a whole. Vasquez v. State, 389 S.W.3d 361, 368–69 (Tex. Crim. App. 

2012) (citing Almanza, 686 S.W.2d at 171). Errors that result in egregious harm are 

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

vitally affect the defensive theory, or make a case for conviction clearly and 

significantly more persuasive.” Taylor v. State, 332 S.W.3d 483, 490 (Tex. Crim. 

App. 2011); see also TEX. CODE CRIM. PROC. art. 36.19 (stating trial court’s 

judgment should not be reversed unless record shows jury charge error was 

calculated to injure defendant’s rights, or unless record demonstrates defendant did 

not have fair and impartial trial).

It is the trial court’s responsibility to deliver to the jury a written charge 

distinctly setting forth the law applicable to the case. TEX. CODE CRIM. PROC. 

art. 36.14; Arteaga v. State, 521 S.W.3d 329, 334 (Tex. Crim. App. 2017). The 
17

purpose of the charge is to inform the jury of the applicable law and guide them in 

its application to the facts of the case. Delgado v. State, 235 S.W.3d 244, 249 (Tex. 

Crim. App. 2007) (internal quotations omitted). 

A proper jury charge consists of an abstract statement of the law and the 

application paragraphs. Alcoser v. State, 596 S.W.3d 320, 332 (Tex. App.—

Amarillo 2019) (stating that “a jury charge should begin with an abstract paragraph 

defining the elements of an offense, or defining significant words or phrases, 

followed by an application paragraph that applies that law to the facts of the 

particular case”), rev’d on other grounds and remanded, 663 S.W.3d 160 (Tex. 

Crim. App. 2022). The abstract paragraphs serve as a glossary to help the jury 

understand the meaning of concepts and terms used in the application paragraphs of 

the charge. Id. at 338. The application paragraphs apply the “pertinent penal law, 

abstract definitions, and general legal principles to the particular facts and the 

indictment allegations.” Vasquez, 389 S.W.3d at 366. The charge’s application 

paragraphs, not the abstract portion, authorize a conviction. Crenshaw v. State, 378 

S.W.3d 460, 466 (Tex. Crim. App. 2012). Because the application paragraphs 

specify the factual circumstances under which the jury should convict or acquit, they 

are often referred to as the “heart and soul” of the jury charge. Vasquez, 389 S.W.3d 

at 367. 
18

B. Applicable Law

Section 21.02(b) of the Texas Penal Code states that a person commits the 

offense of continuous sexual abuse of a child 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 . . .

TEX. PENAL CODE § 21.02(b). Relevant to this appeal, Section 21.02(c) further 

provides that “for purposes of this section, ‘act of sexual abuse’ means any act that 

is a violation of one or more of the following penal laws:

. . .

(2) indecency with a child under Section 21.11(a)(1), if the actor 

committed the offense in a manner other than by touching, 

including touching through clothing, the breast of a child;

. . .

(4) aggravated sexual assault under Section 22.021 . . .

Id. § 21.02(c). 

Section 21.11 of the Texas Penal Code, which defines the offense of

indecency with a child, states in relevant part that:
19

(a) A person commits [the] offense [of indecency with a child] if, 

with a child younger than 17 years of age . . . the person:

(1) engages in sexual contact with the child or causes the child 

to engage in sexual contact. . .

. . .

(c) In this section, “sexual contact” means the following acts, if 

committed with the intent to arouse or gratify the sexual desire of 

any person:

(1) any touching by a person, including touching through 

clothing, of the anus, breast, or any part of the genitals of 

a child; or

(2) any touching of any part of the body of a child, including 

touching through clothing, with the anus, breast, or any 

part of the genitals of a person.

Id. § 21.11(a)(1), (c)(1)–(2). And Section 22.021, which defines the offense of 

aggravated sexual assault of a child, states in relevant part that:

(a) A person commits [the] offense [of aggravated assault]:

(1) if the person:

. . . .

(B) regardless of whether the person knows the age of the 

child at the time of the offense, intentionally or 

knowingly:

(i) causes the penetration of the anus or sexual 

organ of a child by any means;

(ii) causes the penetration of the mouth of a child 

by the sexual organ of the actor;
20

(iii) causes the sexual organ of a child to contact or 

penetrate the mouth, anus, or sexual organ of 

another person, including the actor;

(iv) causes the anus of a child to contact the mouth, 

anus, or sexual organ of another person, 

including the actor; or

(v) causes the mouth of a child to contact the anus 

or sexual organ of another person, including 

the actor; and 

(2) if:

. . .

(B) the victim is younger than 14 years of age, regardless 

of whether the person knows the age of the victim at 

the time of the offense.

. . .

(f) The minimum term of imprisonment for an offense under this 

section is increased to 25 years if:

(1) the victim of the offense is younger than six years of age at 

the time the offense is committed . . . 

Id. § 22.021(a), (f).

7

 The term “child” is defined as “a person younger than 17 years 

of age.” Id. § 22.011(c)(1); see generally id. § 22.021(b)(1) (“‘Child’ has the 

meaning assigned by Section 22.011(c).”).

7 Section 22.021(a)(2)(A) of the Texas Penal Code provides an alternative means of 

committing aggravated sexual assault which is not relevant to this appeal. Section

22.021(a)(2)(A) states:

(A) the person:
21

C. Indictment

Cristan was indicted for the felony offense of continuous sexual abuse of a 

young child. The indictment, which alleges four predicate acts of sexual abuse, 

states that:

DAVID IGNACIO CRISTAN, on or about the 1st day of August, 2017

and anterior to the presentment of this indictment in the County of

Galveston and State of Texas, did then and there, during a period that

was 30 or more days in duration, namely from on or about October 14,

2009 through October 13, 2018, when the defendant was 17 years of 

age or older, commit two or more acts of sexual abuse against [Amy], 

a child younger than 14 years of age, namely:

(i) causes serious bodily injury or attempts to cause the death of the 

victim or another person in the course of the same criminal 

episode;

(ii) by acts or words places the victim in fear that any person will 

become the victim of an offense under Section 20A.02(a)(3), (4), 

(7), or (8) or that death, serious bodily injury, or kidnapping will 

be imminently inflicted on any person;

(iii) by acts or words occurring in the presence of the victim threatens 

to cause any person to become the victim of an offense under 

Section 20A.02(a)(3), (4), (7), or (8) or to cause the death, serious 

bodily injury, or kidnapping of any person;

(iv) uses or exhibits a deadly weapon in the course of the same criminal 

episode;

(v) acts in concert with another who engages in conduct described by 

Subdivision (1) directed toward the same victim and occurring 

during the course of the same criminal episode; or

(vi) with the intent of facilitating the commission of the offense, 

administers or provides to the victim of the offense any substance 

capable of impairing the victim’s ability to appraise the nature of 

the act or to resist the act

TEX. PENAL CODE § 22.021(a)(2)(A).
22

intentionally and knowingly contact the sexual organ of [Amy], who

was then and there younger than 6 years of age, with the Defendant’s

sexual organ, an act constituting the offense of aggravated sexual

assault of a child;

intentionally and knowingly contact the sexual organ of [Amy], who

was then and there younger than 14 years of age, with the Defendant’s

sexual organ, an act constituting the offense of aggravated sexual

assault of a child;

intentionally or knowingly contact the sexual organ of [Amy], who was

then and there younger than 14 years of age, with the Defendant’s

finger, an act constituting the offense of aggravated sexual assault of a

child;

intentionally and knowingly cause the penetration of the mouth of

[Amy], a child who was then and there younger than 14 years of age, 

by the defendant’s sexual organ, an act constituting the offense of 

aggravated sexual assault of a child.

(Emphasis added). While the first, second, and fourth alleged predicate acts of 

sexual abuse constitute aggravated sexual assault of a child under Texas Penal Code 

Section 22.021, the third alleged predicate act of sexual abuse, alleging the contact 

of Amy’s sexual organ with Cristan’s finger, does not. The third predicate act of 

sexual abuse constitutes the felony offense of indecency with a child under Texas 

Penal Code Section 21.11, not aggravated sexual assault of a child as misstated in 
23

the indictment.8, 9 Aggravated sexual assault of child and indecency with a child, 

however, both constitute predicate acts of sexual abuse for the felony offense of 

continuous sexual abuse of a young child. See TEX. PENAL CODE § 21.02(c)(2), (4).

D. Jury Charge

The abstract portion of the charge dealing with the offense of continuous 

sexual abuse of a young child against Amy instructed the jury that:

A person commits the offense of Continuous Sexual Abuse of a 

Young Child if, during a period that is 30 days or more 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, 

at the time of the commission of each of the acts of sexual abuse, the

person was 17 years of age or older and the victim is a child younger

than 14 years of age.

“Act of sexual abuse” includes the offense of Aggravated Sexual 

Assault of Child.

“Child” means a person younger than 17 years of age who is not 

the spouse of the actor.

8 Compare TEX. PENAL CODE § 21.11(a)(1) (“A person commits [the] offense [of 

indecency with a child] if, with a child younger than 17 years of age, the person . . 

. engages in sexual contact with the child. . .”); id. § 21.11(c)(1) (“‘sexual contact’

means . . . any touching by a person . . . of . . . any part of the genitals of a child . . 

.”), with id. § 22.021(a)(1)(B)(iii) (stating person commits felony offense of 

aggravated sexual assault of child if person “intentionally or knowingly. . . causes

the sexual organ of a child to contact . . . the . . . sexual organ of another person”). 

9 We note that Cristan waived any objection or challenge to this “defect, error, or 

irregularity” in the indictment because he did not object before trial. See TEX.CODE

CRIM. PROC. art. 1.14(b) (“If the defendant does not object to a defect, error, or 

irregularity of form or substance in an indictment or information before the date on 

which the trial on the merits commences, he waives and forfeits the right to object 

to the defect, error, or irregularity . . .”).
24

A person commits Aggravated Sexual Assault of a Child if the

person intentionally or knowingly causes the sexual organ of a child

younger than 14 years of age, to contact or penetrate the mouth of the

actor. 

A person commits Aggravated Sexual Assault of a Child if the

person intentionally or knowingly causes the contact or penetration of

the sexual organ of a child younger than 14 years of age by the actor’s

sexual organ.

A person commits Aggravated Sexual Assault of a Child if the

person intentionally or knowingly causes the penetration of the mouth

of a child younger than 14 years of age by the actor’s sexual organ.

A person acts intentionally, or with intent, with respect to the 

nature of his conduct when it is his conscious objective or desire to 

engage in the conduct.

With respect only to the offense of Aggravated Sexual Assault 

of a Child a person acts knowingly, or with knowledge, 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.

. . .

You are instructed that members of the jury are not required to 

agree unanimously on which specific acts of sexual abuse, if any, were 

committed by the defendant or the exact date when those acts were 

committed, if any. The jury must agree unanimously that the defendant, 

during a period that was 30 or more days in duration, committed two or

more acts of sexual abuse as that term has been previously defined.

The application portion of the charge then provide that:

Now if you find from the evidence beyond a reasonable doubt 

that the Defendant DAVID IGNACIO CRISTAN, did then and there, 

during a period that was 30 or more days in duration, to-wit: from on 

or about October 14, 2009 through October 13, 2018, when the 

defendant was 17 years of age or older, commit two or more acts of 

sexual abuse against [Amy], a child younger than 14 years of age, 
25

namely: intentionally and knowingly contact the sexual organ of 

[Amy], who was then and there younger than 6 years of age, with the 

Defendant’s sexual organ, an act constituting the offense of aggravated 

sexual assault of a child;10 intentionally or knowing contact the sexual 

organ of [Amy], who was then and there younger than 14 years of age, 

with the Defendant’s sexual organ, an act constituting the offense of 

aggravated sexual assault of a child; intentionally or knowingly contact 

the sexual organ of [Amy], who was then and there younger than 14 

years of age, with the Defendant’s finger, an act constituting the offense 

of aggravated sexual assault of a child; intentionally and knowingly 

cause the penetration of the mouth of [Amy], a child who was then and 

there younger than 14 years of age, by the defendant’s sexual organ, an 

act constituting the offense of aggravated sexual assault of a child, then 

you will find the defendant guilty of Continuous Sexual Abuse of a 

Young Child as charged in the indictment.

E. Analysis

Cristan argues that the jury charge for the offense of continuous sexual abuse

of a child against Amy “contained a number of erroneous instructions and omissions 

of necessary statements of law” because the charge defined:

1. “Acts of Sexual Abuse” to only include the offense of 

Aggravated Sexual Assault of a Child. The instruction did not 

include any other offenses or acts to constitute “Acts of Sexual 

Abuse.” 

2. Aggravated Sexual Assault of a Child to include causing the 

sexual organ of a child, younger than 14 years of age, to contact 

or penetrate the mouth of the actor.

10

 The range of punishment for aggravated sexual assault is enhanced to a minimum 

of twenty-five years if the victim is younger than six years old at the time of the 

offense. TEX. PENAL CODE § 22.021(f)(1) (“The minimum term of imprisonment 

for an offense under this section is increased to 25 years if . . . the victim of the 

offense is younger than six years of age at the time the offense is committed”).
26

3. Aggravated Sexual Assault of a Child to include causing the 

sexual organ of the actor to contact or penetrate the sexual organ 

of a child younger than 14 years of age, and

4. Aggravated Sexual Assault of a Child to include causing the 

penetration of the mouth of a child younger than 14 years of age, 

by the actor’s sexual organ.

Cristan argues the jury charge is also erroneous because it “did not define any 

offense in which the actor contacts the sexual organ of a child with the hand of the 

actor.” And last, he argued that: 

1. The application paragraph incorrectly instructed the jury that 

Appellant touching the sexual organ of [Amy] with his hand 

constituted the offense of Aggravated Sexual Assault of a Child.

2. The Charge of the Court did not define Indecency with a Child 

by Contact, and

3. The Charge of the Court did not define “sexual contact”, which 

is an element of Indecency with a Child by Contact.

In short, Cristan contends the charge is erroneous because it “incorrectly instructed 

the jury that [Cristan] touching the sexual organ of [Amy] with his hand constituted

the offense of Aggravated Sexual Assault of a Child,” and the charge did not 

(1) “define any offense in which the actor contacts the sexual organ of a child with 

the hand of the actor,” (2) instruct the jury that indecency with a child by contact is 

an act of sexual abuse for purposes of the offense of continuous sexual abuse of a 

child, or (3) define the offense of indecency with a child by contact.
27

 According to Cristan, he suffered egregious harm because these “combined 

errors permitted the jury to convict [Cristan] on incorrect theories of law,” and they 

“affect[ed] the very basis of the case” depriving him of a fair trial. Cristan argues 

that the “general nature of much of [Amy’s] testimony (responding “yes” to 

questions about whether things happened) combined with the missing elements from 

the jury charge” deprived him of a fair trial. He contends the “errors affect[ed] the 

very basis of the case.” According to Cristan, he “was sentenced to 99 years in 

prison without the possibility of parole on a case that the jury was given incorrect 

law and instructions that had missing elements of what the State was required to 

prove beyond a reasonable doubt.” He argues he “suffered egregious harm due to 

the errors in the Charge of the Court.”

Cristan did not object to the jury charge as presented. We thus review the 

charge error under Almanza’s “egregious harm” standard. 686 S.W.2d at 171. 

Errors that result in egregious harm are “those that affect the very basis of the case, 

deprive the defendant of a valuable right, vitally affect the defensive theory, or make 

a case for conviction clearly and significantly more persuasive.” Taylor, 332 S.W.3d 

at 490. We will not reverse a trial court’s judgment unless the record shows that the 

charge error was calculated to injure the defendant’s rights, or the defendant did not 

have a fair and impartial trial. TEX. CODE CRIM. PROC. art. 36.19.
28

1. 1st Almanza Factor: the entire jury charge

Under the first Almanza factor, appellate courts assess whether an error in the 

jury charge resulted in egregious harm by looking at the entire jury charge. Vasquez, 

389 S.W.3d at 368; Almanza, 686 S.W.2d at 171. In other words, courts consider 

“whether a reasonable jury referring to other parts of the charge would find a correct 

statement of the law or would instead be confused or misled.” Uddin v. State, 503 

S.W.3d 710, 717 (Tex. App.—Houston [14th Dist.] 2016, no pet.); see also Ngo, 

175 S.W.3d at 752 (finding egregious harm and stating “the original jury charge 

error was not corrected or ameliorated in another portion of the charge; instead, it 

was compounded by the one misleading statement concerning unanimity that was 

set out in the jury charge”).

Cristan argues that this factor weighs in favor of finding egregious harm 

because the charge contains numerous errors and “as a whole is misleading, missing 

necessary elements, and contains numerous misstatements of law.” According to 

Cristan, the jury charge erroneously instructed the jury that the State’s allegation that 

he contacted Amy’s sexual organ with his finger constituted the offense of 

aggravated sexual assault of a child, when the charge should instead have identified 

the offense as indecency with a child by contact. 

Cristan also contends that “the charge failed to define in any way what crime 

or how a crime is committed between a child and the hand (or finger) of the actor.” 
29

He argues the jury charge did not define the offense of indecency with a child by 

contact or instruct the jury that such an offense constitutes an act of sexual abuse for 

the felony offense of continuous sexual abuse of a child. Cristan argues that this 

information is not included anywhere in the charge. According to Cristan, the jury 

was not provided with the element of the offense of indecency with a child requiring 

a finding of the “intent to arouse or gratify the sexual desire of any person.” He 

argues a correct definition of the offense of indecency with a child by contact would 

have defined “sexual contact” to include the element of “with the intent to arouse or 

gratify the sexual desire of any person,” which is “an element which is totally absent 

from the Charge of the Court in this case.”11 

The individual errors in the abstract portion of the charge Cristan identifies do

not necessarily weigh in favor of egregious harm. For example, although Cristan is 

correct that the abstract portion of the charge does not define indecency with a child 

by contact or reference the definition of “sexual contact” under Section 21.11(c) of 

the Texas Penal Code, which includes “the intent to arouse or gratify the sexual 

desire of any person,” these omissions do not require reversal. A defendant does not 

necessarily suffer actual harm when a predicate offense is not defined in the jury 

11 Section 21.11 of the Texas Penal Code, which defines the offense of indecency with 

a child, defines the term “sexual contact” as “any touching by a person, including 

touching through clothing, of the anus, breast, or any part of the genitals of a child” 

“if committed with the intent to arouse or gratify the sexual desire of any person.” 

TEX. PENAL CODE § 21.11(c)(1). 
30

charge. See Fields v. State, ___ S.W.3d ___, No. 01-20-00280-CR, 2022 WL 

3268525, at *8–10 (Tex. App.—Houston [1st Dist.], Aug. 11, 2022, pet. ref’d) 

(holding trial court’s failure to define underlying offense of robbery in capital 

murder case was harmless because there was no evidence robbery was not planned, 

defendant’s defense at trial was there was no evidence he should have anticipated 

that capital murder would have resulted from planned robbery, and defense counsel 

effectively “conceded [defendant’s] role in conspiring to commit a robbery”).

12

Although the aggravated sexual assault of a child statute, under which the jury 

was instructed, does not expressly identify “intent to arouse or gratify the sexual

desire of any person” as an element of the offense of aggravated sexual assault of a 

child, the Court of Criminal Appeals has recognized that this element is implicitly 

required for the offense. As the Court of Criminal Appeals explained in Evans v.

State, 299 S.W.3d 138 (Tex. Crim. App. 2009), the requirement of “intent to arouse 

or gratify the sexual desire of any person” is expressly stated in the indecency with 

a child statute because otherwise, the offense of indecency with a child, which

applies to “any touching,” “could technically apply to even the most legitimate 

12 See TEX. PENAL CODE § 7.02(b) (“If, in the attempt to carry out a conspiracy to 

commit one felony, another felony is committed by one of the conspirators, all 

conspirators are guilty of the felony actually committed, though having no intent to 

commit it, if the offense was committed in furtherance of the unlawful purpose and 

was one that should have been anticipated as a result of the carrying out of the 

conspiracy.”).
31

handling of a child, for example, a mother washing or bathing her own child.” Id.

at 142. “It is only through the proviso of ‘intent to arouse or gratify the sexual desire 

of any person’ that the statute excludes instances of such legitimate handling of the

child.” Id. But that “proviso is unnecessary in the aggravated sexual assault of a 

child statute because both the title (aggravated sexual assault) of the statute and the 

severity of the conduct proscribed (penetration) ensure that the statute would not be 

applied to any legitimate handling of the child. Id. (emphasis in original). The Court 

held that, in the case before it, “indecency with a child by contact [was] a lesserincluded offense of aggravated sexual assault of a child because,” even though the 

offense of aggravated sexual assault of a child does not include the “intent to arouse 

or gratify the sexual desire of any person” as an express element, “lascivious intent 

[is] implicitly included.” Cornet v. State, 417 S.W.3d 446, 450 (Tex. Crim. App. 

2013) (explaining Court of Criminal Appeals held in Evans that, in that case, 

indecency with a child was lesser-included offense of aggravated sexual assault of 

child).13 Thus, the “intent to arouse or gratify the sexual desire of any person”

element for indecency with a child by contact is not wholly missing from the charge 

13 Indecency with a child by contact is not always a lesser-included offense of 

aggravated sexual assault of a child. See generally Evans v. State, 299 S.W.3d 138, 

143 (Tex. Crim. App. 2009) (holding indecency with child was lesser-included 

offense of aggravated sexual assault of child in that case because “both offenses are 

predicated on same act”). Neither Cristan nor the State contend that indecency with

a child by contact is a lesser-included offense of aggravated sexual assault of a child 

in this case. 
32

because it is implicitly part of the offense of aggravated sexual assault of a child. 

Moreover, Cristan did not argue at trial that he was not guilty of continuous sexual 

abuse of a child because he lacked the requisite intent with respect to any of the 

alleged predicate acts or that the alleged physical contact was innocent and not 

sexual in nature. Cristan’s defense at trial was that Amy had fabricated her claims 

of abuse because she was allegedly afraid of him, and she wanted him “out of the 

picture.”

While the individual errors Cristan identifies do not necessarily weigh in favor

of egregious harm, the aggregate impact of the errors does. The State does not 

dispute that the abstract and application paragraphs contain errors. The application 

paragraph, which is the portion of the charge that authorizes a conviction, 

erroneously instructed the jury that the State’s allegation that Cristan contacted 

Amy’s sexual organ with his finger constituted the offense of aggravated sexual 

assault of a child. This is a misstatement of the law. While the alleged conduct 

would constitute the offense of indecency with a child by contact, the charge does 

not mention the offense of indecency with a child by contact, define the elements of 

the offense in the abstract portion which would have included the definition of 

“sexual contact,” or inform the jury that the offense of indecency with a child by 

contact is “an act of sexual abuse” for purposes of the offense of continuous sexual 

abuse of a child, which is the only offense Cristan was charged with in this case. 
33

Although the harm resulting from an error in the abstract portion of a charge 

can be mitigated by the application portion and vice versa, that is not the case here. 

See generally Kuhn v. State, 393 S.W.3d 519, 529–30 (Tex. App.—Austin 2013, pet. 

ref’d) (“While the application paragraph does not make the abstract portion of the 

charge any less erroneous, . . . on the facts of this case, the correct statement of the 

law in the application paragraph mitigates against a finding of egregious harm.”). 

On the contrary, the abstract paragraphs of the charge in this case exacerbate the 

error in the application paragraph and do nothing to mitigate any harm caused by the 

erroneous instruction. See Uddin, 503 S.W.3d at 718 (“Because the error in the

application paragraph is an affirmative misstatement of the law rather than an

omission, and the abstract portion contains a different error, the charge as a whole

indicates that appellant was egregiously harmed.”). 

Having reviewed the entire charge, we conclude that the first Almanza factor

weighs in favor of a finding of egregious harm because both the abstract and 

application paragraphs contain errors and there is nothing elsewhere in the charge 

itself that mitigates any harm caused by those errors. See Almanza, 686 S.W.2d at 

171; see also Vasquez, 389 S.W.3d at 368.

2. 2nd Almanza factor: The state of the evidence, including the 

contested issues and weight of probative evidence

Under the second Almanza factor, we assess whether Cristan suffered 

egregious harm as a result of the charge error by looking at the state of the evidence, 
34

including the contested issues and weight of probative evidence. Vasquez, 389 

S.W.3d at 368; Almanza, 686 S.W.2d at 171. Cristan argues that this factor weighs 

in favor of finding egregious harm because:

Much of [Amy’s] testimony was general in nature, saying yes things 

happened, but failing to give much context to the events. [Amy] was 

unable to give any specific details about the abuse other than the “most 

recent time” which is outside the time frame of this indictment and the 

first time.

On the contrary, Amy’s testimony was clear and unequivocal. Amy testified that 

Cristan sexually assaulted her from the age of five or six until she was fourteen and 

the assaults occurred every weekend she stayed with him and her mother. According 

to Amy, the sexual abuse occurred in the living room and her bedroom in the 

apartment and in the living room of the house in La Marque. Although her 

description of the most recent incident of sexual abuse in the kitchen at the La 

Marque home was more thorough, she also gave sufficiently detailed accounts of 

other incidents of abuse. Amy testified that when she was twelve or thirteen years 

old, she went to Cristan’s apartment in Texas City one weekend without her siblings 

because they had decided to stay at their grandparents’ home. Amy testified:

And it was nighttime and I was sleeping and I woke up and he was 

laying beside me. I was laying on my side, and he was right behind me 

laying on his side. And he was doing the exact same thing that 

happened recently. But this time I wasn’t standing up. I was laying on 

my side.
35

Amy explained that Cristan touched her vagina, just as he had done in the kitchen, 

but “[t]his time it was only his penis.” According to Amy, she woke up while Cristan 

was rubbing his penis on the “outside” of her vagina. Amy further testified:

I reacted the same way I did the recent one. I was whining. I was telling 

him to stop. And I don’t remember what he was telling me. But I don’t 

know. I was just whining and telling him to stop.

Amy further testified that sometimes, Cristan touched her vagina with his 

hand over her clothes and other times he would touch her vagina under her clothes. 

Amy also recalled that Cristan ejaculated only when he touched her, not when he 

forced her to touch his penis. Cristan also forced Amy to put his penis inside her 

mouth. While Amy did not recall how many times Cristan forced her to put his penis 

inside her mouth, Amy knew that it happened “[n]ot as much as him touching me.” 

Although corroborating evidence is not required, Amy’s claim that Cristan 

sexually abused her is corroborated by Detective Reynolds’s testimony that Cristan 

hid a camera in the bathroom that captured video and photographs of Amy naked,

and Cristan saved these photographs on his phone. 

There is no evidence that directly contradicts any of Amy’s testimony

regarding Cristan’s sexual abuse. While Cristan’s mother, Bustamante, testified that 

the children were happy when they visited her home on the weekends and she did 

not see anything that caused her concern about Cristan’s conduct towards the 

children, Bustamante also did not directly dispute that the assaults occurred.
36

Furthermore, in his statement to police, Cristan never denied that he sexually

assaulted Amy and Julie. Rather, Cristan told the Detectives that he did not know if 

he had sexually assaulted them because he blacks out “the other half of my life when 

all of this stuff happened, supposedly.” Cristan, who acknowledged that the abuse 

could have happened, told the Detectives that he had no memory of it occurring. See

Kuhn, 393 S.W.3d at 528 (holding second Almanza factor did not weigh in favor of 

egregious harm when charge error related to timing of incidents, and defendant 

“focused his defense not on the timing of the incidents but on attacking the 

credibility of the victim,” and thus error did not “vitally effect a defensive theory”); 

see also Williams v. State, 851 S.W.2d 282, 289 (Tex. Crim. App. 1993) (holding no 

egregious harm resulted where charge error affected issue that “was not a hotlycontested issue at trial” and thus “had minimal impact on appellant’s trial”). 

Cristan also does not contest that, if he abused Amy as she claims, the abuse 

would have been with the intent of arousing or gratifying his sexual desire. When 

Cristan spoke to the Detectives, he told them that he did not recall abusing Amy 

because he regularly blacks out and, the abuse would have had to occur while he was 

blacked out. Cristan also told the Detectives that he blacks out when he gets “horny” 

and when “[y]ou are so horny it is like a blur; you try to put it in something.” In 

addition to Cristan’s statements to the Detectives, the fact that Cristan saved the 
37

naked photographs of Amy on his phone also supports the sexual nature of Cristan’s 

conduct towards Amy. 

Elsewhere in his brief, Cristan argues that given the charge as a whole, a juror 

could have “believe[d] beyond a reasonable doubt that [Cristan] contacted the sexual 

organ of [Amy] with his finger and that [Cristan] committed one of the other listed 

acts, but have a reasonable doubt about the other two allegations.” In other words, 

he claims the jury could have concluded that two of the predicate acts of aggravated 

sexual assault of a child did not occur, leaving the jury with only one predicate act 

of aggravated sexual assault of a child and the incorrectly identified predicate act of 

indecency with a child on which to base his conviction. This argument does not 

carry the day. There is no evidence that any juror found Cristan guilty of the offense 

of continuous sexual abuse of a child against Amy based on the allegation Cristan 

contacted Amy’s sexual organ with his finger, which the abstract and application 

paragraphs of the charge erroneously described as constituting the offense of 

aggravated sexual assault of a child, as opposed to the other three alleged predicate 

acts of sexual abuse. Cristan’s suggestion that his conviction might be based in part 

on the erroneous portion of the application paragraph of the charge is speculative 

and amounts to no more than theoretical harm.14 See Bradshaw v. State, 244 S.W.3d 

14 Although the error is contained in the abstract and application paragraphs, it is the 

application paragraphs of the charge, not the abstract portion, that authorize a 

conviction. Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012).
38

490, 498 (Tex. App.—Texarkana 2007, pet. ref’d) (holding defendant’s “argument 

that the verdict may not have been unanimous is pure speculation” when “record 

contain[ed] no evidence that the jury’s verdict was not unanimous”); Curry v. State,

222 S.W.3d 745, 753 (Tex. App.—Waco 2007, pet. ref’d) (concluding defendant’s 

speculation that one juror “might have found sudden passion” was “theoretical harm 

that we will not credit”). Notably, the jury was not limited to convicting Cristan 

based on only four occurrences of abuse. Rather, the four predicate acts listed in the 

indictment and in the jury charge identify four different types of sexual abuse. Thus, 

the jury could have based its verdict on a finding that Cristan committed only one of 

the predicate acts two or more times during a period that was thirty or more days in 

duration. Furthermore, because the jury apparently found Amy to be a credible 

witness, it is doubtful the jury would have believed some of her allegations, but not 

others. See Martin v. State, 335 S.W.3d 867, 876 (Tex. App.—Austin 2011, pet. 

ref’d) (“Moreover, appellant’s defense was that J.W.’s testimony was not credible 

and that no acts of sexual abuse occurred at any time. If the jurors believed J.W., 

and it is plain that they did, it is unlikely that they believed that appellant’s sexually 

abusive acts stopped before September 1, 2007.”).

After reviewing the state of the evidence, including contested issues and the 

weight of probative evidence, we conclude that the second Almanza factor weighs 

against a finding of egregious harm. See Almanza, 686 S.W.2d at 171; see also
39

Vasquez, 389 S.W.3d at 368; see also Johnson v. State, 981 S.W.2d 759, 763 (Tex. 

App.—Houston [1st Dist.] 1998, pet ref’d) (“When the evidence is overwhelming, 

it is obviously less likely the jury was influenced by an erroneous jury instruction 

than by the weight of the probative evidence itself.”).

3. 3rd Almanza Factor: the arguments of counsel

For the third Almanza factor, we consider the arguments of counsel when

assessing whether Cristan suffered egregious harm as a result of the charge error. 

See Vasquez, 389 S.W.3d at 368; Almanza, 686 S.W.2d at 171. Cristan argues that 

the State’s closing arguments weigh in favor of a finding of egregious harm because 

the State emphasized to the jury that the charge contained the applicable law, and 

the State instructed the jury they did not have to agree as to whether a specific act of

sexual abuse occurred to find Cristan guilty of the offense of continuous sexual abuse

of a child.

15

 

The State’s closing argument addressed all three of the felony offenses for 

which Cristan was tried—the felony offenses of continuous sexual abuse of a child 

against Julie and Amy, and aggravated sexual assault against Amy. The State began 

its closing argument by stating:

First thing I have to talk to you about is the court’s charge. So these 

three documents [the charges for the two offenses of continuous sexual 

abuse of a child and single offense of aggravated sexual assault] that 

were just read to you, this is the charge of the court. This is the law 

15 Cristan does not dispute that these are correct statements of the law.
40

that’s given to you to govern your deliberations in this case. This is the 

law you’ve sworn an oath to follow in this case. So any question you 

have as to what the law is that is to be applied is found right here. So 

these three documents that were just read to you, this is the charge of 

the court. This is the law that’s given to you to govern your

deliberations in this case. This is the law you’ve sworn an oath to 

follow in this case. So any question you have as to what the law is that 

is to be applied is found right here.

The State was thus referring the jury to all three charged offenses, including the 

offense of continuous sexual abuse of a child against Julie, which was predicated on 

two acts constituting the offense of indecency with a child by contact.

The State then explained to the jury that “[c]ontinuous sexual abuse of a child 

is a very unique charge” because it “doesn’t have the exact same traditional 

unanimity requirement” as other criminal offenses, including the charged offense of 

aggravated sexual assault against Amy. The State emphasized to the jury that 

although they had to agree unanimously that the aggravated sexual assault against 

Amy “occurred just as it alleged in the charge” to find Cristan guilty of the offense 

of aggravated sexual assault against Amy, they did not have to agree as to whether 

a specific act of sexual abuse occurred to find Cristan guilty of the offense of 

continuous sexual abuse of a child, so long as they agreed that “at least two acts of 

sexual abuse as described [occurred] and that they happened over a period greater 

than 30 days.” Thus, the State’s discussion of unanimity among the jurors was 

intended to emphasize a key distinction between the charged offenses of aggravated 

sexual assault of a child and continuous sexual abuse of a child.
41

The State also instructed the jury that Amy’s and Julie’s testimony that Cristan 

“would put his hand under their pants but over their underwear and touch their 

vagina” described “an act of sexual abuse of a child.” Although the jury was 

incorrectly instructed that this act against Amy constituted the offense of aggravated 

assault of a child, as opposed to indecency with a child by contact, the jury was 

nevertheless informed that the underlying conduct (intentionally or knowingly 

contacting Amy’s sexual organ with Cristan’s finger) was an act of sexual abuse for 

purposes of the offense of continuous sexual abuse of a child. See generally TEX.

PENAL CODE § 21.02(b) (offense of continuous sexual abuse of child requires person 

to have “commit[ed] two or more acts of sexual abuse” with period “that is 30 or 

more days in duration”). Cf. Reckart v. State, 323 S.W.3d 588, 601 (Tex. App.—

Corpus Christi–Edinburg 2010, pet. ref’d) (stating underlying acts of sexual abuse 

“are the manner and means of committing an element of the offense” of continuous 

sexual abuse of a child, not elements of offense). This is a correct statement of the 

law. See TEX. PENAL CODE § 21.11(c)(1) (defining indecency with child by contact 

to include “any touching by a person, including touching through clothing, of the 

anus, breast, or any part of the genitals of a child”); see also id. § 21.02(c)(2), (4)

(defining “act of sexual abuse” for purposes of offense of continuous sexual abuse

of child to include “indecency with a child under Section 21.11(a)(1), if the actor 

committed the offense in a manner other than by touching, including touching 
42

through clothing, the breast of a child” and “aggravated sexual assault under Section 

22.021”). 

Cristan’s defense counsel also discussed the charge during his closing 

arguments. He argued: 

I too want to start with the court’s charge. And, don’t worry, you didn’t 

have to memorize it. You’ll be given a copy of it back in the jury room 

while you’re deliberating these cases. You’ll see in here that this is the 

law that applies to this case. And I just want to highlight some of the 

parts that I think are most important.

Cristan’s counsel then discussed the presumption of innocence and burden of proof. 

He reminded the jury that Cristan was not on trial for any offense stemming from 

the photographs and video of Amy the officers found on his cell phone. He 

counseled the jury against allowing those images to sway the jury’s decision 

regarding whether Cristan was guilty of the three charged offenses. Cristan’s 

counsel noted that the only evidence of Cristan’s guilt was Amy’s and Julie’s 

testimony and he argued that their testimony was not credible. Thus, neither the 

State nor Cristan’s counsel emphasized the errors in the charge in their closing 

arguments. 

After reviewing the arguments of counsel, we conclude that the third Almanza

factor weighs against a finding of egregious harm. See Almanza, 686 S.W.2d at 171; 

see also Vasquez, 389 S.W.3d at 368.
43

4. 4th Almanza Factor: Any other relevant information revealed by 

the record of the trial as a whole16

Under the fourth Almanza factor, we assess whether the charge error resulted 

in egregious harm by considering “any other relevant information revealed by the 

record of the trial as a whole.” Almanza, 686 S.W.2d at 171; see also Vasquez, 389 

S.W.3d at 368–69. The record reflects that Cristan was tried for three offenses: 

(1) continuous sexual abuse of a child against Amy, (2) continuous sexual abuse of 

a child against Julie, and (3) aggravated sexual assault against Amy. The two alleged 

predicate acts of sexual abuse in Julie’s case were for acts constituting indecency

with a child by sexual contact. In the indictment in Julie’s case, the State alleged: 

From on or about December 3rd, 2009, through December 2nd, 2017, 

when the defendant was 17 years of age or older, commit two or more 

acts of sexual abuse against [Julie], a child younger than 14 years of 

age, namely: With intent to arouse or gratify the sexual desire of the

defendant, engage in sexual contact with [Julie], a child younger than 

14 years of age, by touching the genitals of [Julie] with the defendant’s 

hand, an act constituting the offense of indecency with a child by sexual 

contact and with intent to arouse or gratify the sexual desire of the 

defendant, cause [Julie], a child younger than 14 years of age, to engage 

in sexual contact by causing [Julie] to touch the genitals of the 

defendant with her hand, an act constituting the offense of indecency 

with a child by sexual contact. 

During voir dire, the State identified the elements of the offense of continuous sexual 

abuse of a child and informed the venire panel:

Acts of sexual abuse, I just stated the definition. This includes sexual 

assault of a child, aggravated sexual assault of a child, indecency with 

16 Cristan does not address the fourth Almanza factor in his brief.
44

a child by contact. . . . Now, indecency with a child by contact, what 

we’re talking about here is touching, so less penetration more touching, 

intentionally or knowingly engage in any sexual contact with intent to 

arouse or gratify the desire of the actor; and, again, the victim is 

younger than 17.

Thus, the record of the trial as a whole reveals that the jury was informed of the 

elements of the offense of indecency with a child by contact and that acts constituting 

the offense of indecency with a child by contact are acts of sexual abuse for purposes 

of establishing the offense of continuous sexual abuse of a child. See Vasquez, 389 

S.W.3d at 368–69 (stating egregious harm analysis requires consideration of “any 

other relevant information revealed by the record of the trial as a whole”). It is also 

notable that the factual basis underlying one of the predicate acts of indecency with 

a child by contact with respect to Julie is similar to the factual allegations regarding 

Amy because both girls alleged that Cristan touched or contacted their “sexual 

organ” or “genitals” with his “hand” or “finger.”17

We further note that if the jury relied on the erroneous application portion of 

the charge to find Cristan guilty of continuous sexual abuse of a child based on the 

predicate acts of sexual abuse, which the charge incorrectly identified as aggravated 

17 Compare indictment in trial court cause number 19-CR-1312 (continuous sexual 

abuse against Julie) (“With intent to arouse or gratify the sexual desire of the 

defendant, engage in sexual contact with [Julie], a child younger than 14 years of 

age, by touching the genitals of [Julie] with the defendant’s hand”) with trial court 

cause number 19-CR-1313 (continuous sexual abuse against Amy) (“intentionally 

or knowingly contact the sexual organ of [Amy], who was then and there younger 

than 14 years of age, with [Cristan’s] finger”).
45

sexual assault of a child, it is reasonable to conclude that the jury would also have 

found him guilty based on the offense of indecency with a child by contact. 

Indecency with a child by contact is broader in scope than aggravated sexual assault 

of a child because the former prohibits “any touching,” TEX. PENAL CODE

§ 21.11(c)(1) (defining “sexual contact”), whereas aggravated sexual assault 

prohibits “contact” or “penetration” of the child’s or some else’s anus, or sexual 

organ. Id. § 22.021(a)(1)(A).18 Indecency with a child by contact and aggravated 

sexual assault of a child both require the perpetrator to act with the intent of sexual 

desire, which is articulated in the indecency with a child statute as “the intent to 

arouse or gratify the sexual desire of any person.” Id. § 21.11(c); see also Evans,

299 S.W.3d at 142. This court has recognized that the key distinction between these 

offenses is the “degree of physical invasion.” Prestiano v. State, 581 S.W.3d 935, 

943 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d) (holding offense of indecency

with child by contact in that case was lesser-included offense of aggravated sexual 

assault of child and stating “the only thing separating the two offenses is the degree 

of physical invasion”).19 

18 For example, the offense of aggravated sexual assault of a child prohibits individuals 

from “caus[ing] the sexual organ of another person, without that person’s consent, 

to contact or penetrate the mouth, anus, or sexual organ of another person, including 

the actor.” TEX. PENAL CODE § 22.021(a)(1)(A)(iii).

19 Neither Cristan nor the State contend that indecency with a child by contact is a 

lesser-included offense of aggravated sexual assault of a child in this case. See
46

After considering the record of the trial as a whole, we conclude that the fourth 

Almanza factor weighs against a finding of egregious harm. See Almanza, 686 

S.W.2d at 171; see also Vasquez, 389 S.W.3d at 368–69.

Although the first Almanza factor, where we consider the entire charge, 

weighs in favor of egregious harm, the third Almanza factor (the arguments of

counsel) weighs against egregious harm because counsel did not emphasize the

errors, make any misstatements of the law, and the State correctly instructed the jury 

during closing arguments that the underlying conduct (intentionally or knowingly 

contacting Amy’s sexual organ with Cristan’s finger) was an act of sexual abuse for 

purposes of the offense of continuous sexual abuse of a child.

The second and fourth Alamanza factors also weigh against a finding of

egregious harm because after considering the strength of the evidence supporting

Cristan’s conviction, none of which was directly contradicted, and the other relevant

information in the record, including that the jury was informed of the elements of

offense of indecency with a child and told the offense was “an act of sexual abuse”

for purposes of the offense of continuous abuse of a child, and the similarities

between the factual scenario alleged against Amy that incorrectly discounted as

aggravated sexual assault of a child, and the factual scenario alleged against Julie

generally Evans v. State, 299 S.W.3d 138, 143 (Tex. Crim. App. 2009) (holding 

indecency with child was lesser-included offense of aggravated sexual assault of 

child in that case because “both offenses are predicated on same act”).
47

that was correctly described as indecency with a child by contact, it is apparent that

these circumstances mitigated any harm that could have resulted from the erroneous

charge in Amy’s case. 

In light of those factors, and based on the unique facts of this case, we cannot 

say that the charge errors affected the very basis of the case, deprived Cristan of a 

fair and impartial trial, or vitally affected Cristan’s defensive theory at trial. See 

TEX. CODE CRIM. PROC. art. 36.19 (stating trial court’s judgment should not be 

reversed unless record shows that jury charge error was calculated to injure 

defendant’s rights, or unless record demonstrates defendant did not have fair and 

impartial trial); see also Taylor, 332 S.W.3d at 490 (stating egregious errors are 

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

vitally affect the defensive theory, or make a case for conviction clearly and 

significantly more persuasive”). We thus conclude that Cristan did not suffer 

egregious harm as a result of the charge errors. See Almanza, 686 S.W.2d at 171 

(listing four factors courts consider when assessing whether defendant was 

egregiously harmed by charge error); see also Fields, 2022 WL 3268525, at *8 

(stating “whether jury charge error was harmful is determined on a case-by-case 

basis, rather than under any bright-line rules”) (citing Rogers v. State, 550 S.W.3d 

190, 192 (Tex. Crim. App. 2018)).

We overrule Cristan’s sole issue.
48

Conclusion

We affirm the trial court’s judgment. 

Veronica Rivas-Molloy

Justice 

Panel consists of Justices Hightower, Rivas-Molloy, and Farris.

Do Not Publish. TEX. R. APP. P. 47.2(b).