COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00301-CR

BRANDON MICHAEL CHAMBERS APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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A jury convicted Appellant Brandon Michael Chambers of continuous 

sexual abuse of a child under fourteen years of age. The trial court sentenced 

him to 40 years’ confinement. Appellant brings two points on appeal, arguing 

that the trial court erred by denying his requested affirmative-defense jury 

instruction and by denying his motion for instructed verdict because his 

 1

See Tex. R. App. P. 47.4.
2

affirmative defense was unrebutted. Because the trial court did not err, we affirm 

the trial court’s judgment.

Appellant, who was twenty-three years old, engaged in what he 

characterized as “consensual sexual contact” with an eleven-year-old girl over an 

extended period of time. Appellant confessed to repeated sexual contact and 

sexual intercourse with the child, both to the investigating detective as well as in 

open court when he testified before the jury and the trial court. His entire 

defense rested upon the representations that he never used force, threats, or 

duress against the child and that he was not a registered sex offender. He 

argued at trial and argues on appeal that these two facts met the test for the 

statutory affirmative defense under the specific language of the continuous 

sexual abuse statute.

Texas Penal Code section 21.02 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 . . . and

(2) at the time of the commission of each of the acts of sexual 

abuse, the actor is 17 years of age or older and the victim is a child 

younger than 14 years of age.2

Subsection (g) of section 21.02 provides,

It is an affirmative defense to prosecution under this section 

that the actor:

 2

Tex. Penal Code Ann. § 21.02(b) (West Supp. 2013).
3

(1) was not more than five years older than:

(A) the victim of the offense, if the offense is alleged to have 

been committed against only one victim; 

. . . ;

(2) did not use duress, force, or a threat against a victim at the time 

of the commission of any of the acts of sexual abuse alleged as an 

element of the offense; and

(3) at the time of the commission of any of the acts of sexual abuse 

alleged as an element of the offense:

(A) was not required under Chapter 62, Code of Criminal 

Procedure, to register for life as a sex offender; or

(B) was not a person who under Chapter 62 had a reportable 

conviction or adjudication for an offense under this section or an act 

of sexual abuse as described by Subsection (c).3

Appellant requested a jury instruction on the affirmative defense provided 

in section 21.02(g). Upon his timely request, a defendant in a criminal case is 

entitled to an affirmative-defense instruction on every issue raised by the 

evidence.4 In his first point, Appellant argues that subsection (g) sets out two 

separate affirmative defenses: one in subsection (g)(1) based on the age 

difference between the actor and complainant, and a separate affirmative 

defense set out in subsection (g)(2) and (3) for when the actor did not use 

 3

Id. § 21.02(g) (emphasis added).

4

Golden v. State, 851 S.W.2d 291, 295 (Tex. Crim. App. 1993); Warren v. 

State, 565 S.W.2d 931, 933–34 (Tex. Crim. App. [Panel Op.] 1978); Franklin v. 

State, No. 02-12-00342-CR, 2013 WL 2631167, at *4 (Tex. App.—Fort Worth 

June 13, 2013, no pet.) (mem. op., not designated for publication).
4

duress, force, or a threat against the complainant and was not at the time of the 

offense required to register as a sex offender. Appellant further argues that it 

was uncontroverted that he met the requirements of the affirmative defense that 

he claims is set out in subsection (g)(2) and (3) and that the trial court therefore 

erred by not instructing the jury on the affirmative defense.

Appellant’s reliance on section 21.02(g) is misplaced. The single 

affirmative defense provided by the statute has three components that must be 

met: the relative ages; the absence of duress, force, or threat; and the absence 

of an obligation to register as a sex offender.5 These three components are set 

out in the conjunctive, not the disjunctive.6 As Appellant concedes and the 

record reflects, he was approximately twelve years older than the child. Because 

there is no evidence to satisfy the necessary element that his age not exceed the 

complainant’s age by more than five years,7 the section 21.02(g) affirmative 

defense was not raised by the evidence. The section 21.02(g) affirmative 

 5

Tex. Penal Code Ann. § 21.02(g).

6

Id.; see Castaneda v. State, No. 05-08-00077-CR, 2008 WL 4916372, at 

*4 (Tex. App.—Dallas Nov. 18, 2008, pet. ref’d) (mem. op., not designated for 

publication) (rejecting similar argument under similar subsection in section 21.11, 

which provides the elements of indecency with a child); Dallas Cnty. Dist. 

Attorney’s Office v. Hoogerwerf, No. 02-05-00034-CV, 2005 WL 3436557, at *2

(Tex. App.—Fort Worth Dec. 15, 2005, no pet.) (mem. op.) (“Because the 

requirements are conjunctive, if the petitioning party does not satisfy sections (A), 

(B), and (C), the evidence is legally insufficient to show strict compliance with 

Article 55.01.”) (citations omitted).

7

See Tex. Penal Code Ann. § 21.02(g)(1).
5

defense was therefore not available to Appellant.8 Consequently, the trial court 

did not err by refusing to instruct the jury on the affirmative defense. We overrule 

Appellant’s first point.

In his second point, Appellant contends that the trial court erred by denying 

his motion for instructed verdict. A challenge to the denial of a motion for 

instructed verdict is actually a challenge to the sufficiency of the evidence.9

 The 

defendant has the burden of proving an affirmative defense by a preponderance 

of the evidence.10 Because there is no evidence to satisfy the requirement that 

Appellant’s age not exceed the complainant’s age by more than five years,11 he 

did not meet that burden. Accordingly, the trial court did not err by denying his 

motion for an instructed verdict. We overrule Appellant’s second point.

Having overruled Appellant’s two points, we affirm the trial court’s 

judgment.

 8

See Franklin, 2013 WL 2631167, at *4; Castaneda, 2008 WL 4916372, at 

*4.

9

Canales v. State, 98 S.W.3d 690, 693 (Tex. Crim. App.), cert. denied, 540 

U.S. 1051 (2003).

10Tex. Penal Code Ann. § 2.04(d) (West 2011).

11See id. § 21.02(g)(1).
6

/s/ Lee Ann Dauphinot

LEE ANN DAUPHINOT

JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: June 26, 2014