Fredys Olifier Rios-Barahona v. State ( 2019 )

NUMBER 13-17-00567-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
FREDYS OLIFIER RIOS-BARAHONA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 207th District Court
of Comal County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Perkes
Memorandum Opinion by Justice Hinojosa
Appellant Fredys Olifer Rios-Barahona appeals his convictions, following a jury
trial, for aggravated sexual assault of a child, a first-degree felony, and indecency with a
child by contact, a second-degree felony. See TEX. PENAL CODE ANN. §§ 21.11, 22.021.
The trial court assessed punishment of concurrent seven-year prison sentences. In four
related issues, appellant complains that the jury charge improperly permitted the jury to
convict appellant for acts committed as a juvenile. On that basis, appellant argues that:
(1) his conviction is not supported by legally sufficient evidence; (2) he suffered egregious
harm from an erroneous jury charge; (3) his trial counsel was ineffective; and (4) the trial
court erred in denying his motion for new trial. In his fifth issue, for which the State
concedes error, appellant argues that (5) his double jeopardy rights were violated
because both convictions arose from a single incident. We affirm in part and reverse
and render in part.
I. BACKGROUND 1
A grand jury returned an indictment charging appellant with committing aggravated
sexual assault and indecency with a child on or about February 14, 2014, when appellant
was seventeen years old. With respect to the aggravated sexual assault charge, the
indictment alleged that appellant caused the penetration of the female sexual organ of
J.L., 2 a child younger than fourteen years of age, with his finger or fingers. The
indictment further alleged, under the indecency with a child count, that appellant engaged
in sexual contact with J.L. by committing said acts and that he did so with the intent to
arouse or gratify his sexual desire.
J.L. testified concerning an event occurring on the school bus in February of 2014
in Comal County, Texas. At the time, J.L. was twelve years old and in the sixth grade.
J.L. usually sat next to her friend D.H., but D.H. was absent that day. During the bus
ride home, appellant moved from the back of the bus and sat next to her. J.L. had
1 This case is before this Court on transfer from the Third Court of Appeals in Austin pursuant to a
docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
2 We refer to the minor complainant and witness by their initials to protect their privacy.
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minimal prior contact with appellant because he spoke only Spanish. Without saying
anything to J.L., appellant reached over and put his hand inside the front of her pants.
J.L. tried to pull appellant’s hand out from her pants, but “he just—he just went in deeper,”
penetrating her vagina with his fingers. J.L. estimated that the assault lasted ten to
fifteen minutes. J.L. described being in shock throughout the incident. When the bus
arrived at appellant’s stop, he removed his hand from J.L.’s pants and exited the bus.
Later in her testimony, when prompted by the State, J.L. recalled that the assault took
place on February 14, 2014, or Valentine’s Day.
J.L. testified that she later told her friend D.H. about the assault, and D.H.
responded that appellant had done the same thing to her. In May of 2014, J.L informed
her mother what happened, and her mother contacted law enforcement. J.L. also stated
that she talked to a school counselor at some point about the incident.
Robert Gardner, a New Braunfels Police Department detective, testified regarding
his investigation into J.L.’s allegations. After his assignment to the case, Detective
Gardner scheduled a forensic interview for J.L. with the Comal County Children’s
Advocacy Center. Detective Gardner viewed the interview through a live video feed from
a nearby room. The trial court later admitted a video recording of the interview into
evidence. Detective Gardner spoke with the transportation department for Comal
Independent School District and learned that there were no cameras on the bus where
the alleged assault took place. He recalled that the assault was alleged to have occurred
on February 14, 2014. On cross-examination, appellant showed Detective Gardner a
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school calendar indicating that school was not in session on that date. 3 Detective
Gardner explained that this fact would not have affected his investigation:
[S]chools do celebrate holidays on different days, even before an early
release or when they actually have a holiday. So they might have had a
Valentine’s Day going on at the school and celebrated on that Thursday.
Children do associate things. They get dates mixed up. Sometimes
they’re not exact on it, so I wouldn’t have ruled [the allegation] out because
of that.
Appellant called multiple witnesses who attested to appellant’s good character.
The State responded by referencing appellant’s school disciplinary history, which
included inappropriately touching other female students.
D.H. testified in rebuttal for the State. She said J.L. told her that appellant had
touched her, but she maintained that J.L. did not go into detail. D.H. stated that she did
not personally have any interactions with appellant.
The jury returned a guilty verdict on both counts. This appeal followed.
II. LEGAL SUFFICIENCY
By his first issue, appellant argues that the evidence is legally insufficient to
support both of his convictions.
A. Standard of Review and Applicable Law
When examining the legal sufficiency of the evidence, we consider the combined
and cumulative force of all admitted evidence in the light most favorable to the conviction
to determine whether, based on the evidence and reasonable inferences therefrom, any
rational trier of fact could have found each element of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Ramsey v. State, 473 S.W.3d 805,
3 The trial court admitted the calendar, but the exhibit does not appear in the appellate record.
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808 (Tex. Crim. App. 2015). In doing so, we give deference to the jury as factfinder to
fairly resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from
facts. Salazar v. State, 562 S.W.3d 61, 65 (Tex. App.—Corpus Christi–Edinburg 2018,
no pet.). When the record supports conflicting inferences, we presume that the factfinder
resolved the conflicts in favor of the prosecution and therefore defer to that determination.
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
We measure the legal sufficiency of the evidence against the elements of the
offense as defined by a hypothetically correct jury charge for the case. Byrd v. State,
336 S.W.3d 242, 246 (Tex. Crim. App. 2011); Salazar, 562 S.W.3d at 65. Such a charge
is one that accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s
theories of liability, and adequately describes the offense for which the defendant was
tried. Byrd, 336 S.W.3d at 246; Salazar, 562 S.W.3d at 65.
B. Analysis
For both convictions, appellant argues that the State failed to establish by legally
sufficient evidence that appellant committed an offense after turning seventeen. We
disagree.
When the defendant’s age is an element of the offense, the State must establish
the element with legally sufficient evidence. See Caston v. State, 549 S.W.3d 601, 606
(Tex. App.—Houston [1st Dist.] 2017, no pet.) (reviewing whether there was legally
sufficient evidence that the defendant was seventeen when he committed acts of sexual
abuse as an element of continuous sexual abuse of a child under Texas Penal Code
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§ 21.02); Villarreal v. State, 470 S.W.3d 168, 172 (Tex. App.—Austin 2015, no pet.)
(reviewing whether there was legally sufficient evidence that the alleged abuse occurred
when defendant was over the age of seventeen in appeal from an aggravated sexual
assault of a child conviction). In addition, Texas Penal Code § 8.07(b) generally prohibits
the prosecution or conviction of a person “of any offense committed before reaching 17
years of age” unless the juvenile court has waived its jurisdiction and certified the
individual for criminal prosecution. TEX. PENAL CODE ANN. § 8.07(b). 4
J.L. was unequivocal in her testimony that appellant sexually assaulted her in
February of 2014, specifically February 14 or Valentine’s Day. The record reflects that
appellant turned seventeen on November 28, 2013. Accordingly, appellant would have
been seventeen at the time of the offenses. Appellant maintains that the offense “could
not have occurred on February 14, 2014, as the complainant testified” because the school
was not in session on that day. However, we must presume that the jury resolved this
conflicting evidence in favor of its verdict. See Clayton, 235 S.W.3d at 778. In that
regard, Detective Gardner testified that “schools do celebrate holidays on different days,
even before an early release or when they actually have a holiday. So they might have
4 A person accused of committing a felony offense between his tenth and seventeenth birthdays is
subject to the exclusive original jurisdiction of a juvenile court. Moon v. State, 451 S.W.3d 28, 37 (Tex.
Crim. App. 2014); see TEX. FAM. CODE ANN. § 51.04(a). A defendant may challenge the trial court’s
jurisdiction on this basis by filing a written motion with the trial court:
A claim that a district court or criminal district court does not have jurisdiction over a person
because jurisdiction is exclusively in the juvenile court and that the juvenile court could not
waive jurisdiction under Section 8.07(a) Penal Code, or did not waive jurisdiction under
Section 8.07(b), Penal Code, must be made by written motion in bar of prosecution filed
with the court in which criminal charges against the person are filed.
TEX. CODE CRIM. PROC. ANN. art. 4.18(a).
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had a Valentine’s Day going on at the school and celebrated on that Thursday.” The jury
could have reasonably inferred from the testimony that the offense occurred near
February 14 when school was in session and not on some date prior to November 28,
2013. See id.
Accordingly, we conclude that the State established by legally sufficient evidence
that appellant was seventeen years old when he committed the charged offenses. See
Jackson, 443 U.S. at 319; Ramsey, 473 S.W.3d at 808. We overrule appellant’s first
issue.
III. JURY CHARGE
By his second issue, appellant argues that “[t]he trial court erred by failing to
properly instruct the jury that they were required to find that the offense occurred after
November 28, 2013, and before the date of the indictment.” Appellant further maintains
that he was egregiously harmed by the error, which he did not object to at trial.
A. Standard of Review and Applicable Law
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. ANN. art. 36.14;
see Arteaga v. State, 521 S.W.3d 329, 334 (Tex. Crim. App. 2017). A trial court’s duty
to instruct the jury on the law applicable to the case exists even when defense counsel
fails to object to inclusions or exclusions in the charge. Taylor v. State, 332 S.W.3d 483,
486 (Tex. Crim. App. 2011). This responsibility may require the judge to sua sponte
provide the jury with the law applicable to the case, under Article 36.14. Id. However,
the trial court has no duty to instruct the jury on an unrequested defensive issue. Id. at
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487 (citing Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998)).
Appellant did not object to the jury charge in this case. Therefore, we may only
reverse appellant’s convictions if the charge error resulted in “egregious harm.” Neal v.
State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008). “Harm is egregious if it deprives the
appellant of a fair and impartial trial.” Id.; see Allen v. State, 253 S.W.3d 260, 264 (Tex.
Crim. App. 2008) (“[J]ury 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.”).
Applying the egregious harm test requires considering (1) the jury charge, (2) the state of
the evidence, (3) the parties’ arguments, and (4) all other relevant information in the
record. See Allen, 253 S.W.3d at 264.
B. Analysis
Appellant complains that the following instruction, while a correct statement of law
in most cases, improperly permitted the jury to convict appellant for conduct occurring
before his seventeenth birthday:
The State is not bound by the specific dates in the indictment that the
offense is alleged to have been committed. A conviction may be had upon
proof that the offense, if any, was committed at any time prior to the filing of
the indictment that is within the period of limitations. The indictment in the
instant case was filed on March 2, 2016. There is no period of limitations for
the [charged offenses 5]. Therefore, proof that the offense, if any, occurred
prior to the filing of the indictment on March 2, 2016 is sufficient.
Appellant argues that the instruction should have read, in part, as follows: “Therefore,
proof that the offense, if any, occurred after November 28, 2013, and prior to the filing of
the indictment on March 2, 2016, is sufficient.”
5 The jury charge repeated identical instructions for each offense.
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In Taylor v. State, 332 S.W.3d 483 (Tex. Crim. App. 2011), the Texas Court of
Criminal Appeals addressed a similar complaint of jury charge error. The defendant in
Taylor was charged by three separate indictments with aggravated sexual assault. Id.
at 485. The complainant testified regarding sexually assaultive conduct committed by
the defendant both before and after the defendant’s seventeenth birthday. Id. at 485–
86. Although the indictments alleged the offenses were committed on dates that
followed the defendant’s seventeenth birthday, the charge instructed the jurors that the
State was not bound by the specific dates alleged and that they could convict the
defendant if the offenses were committed at any time within the period of limitations. Id.
at 487–88. The defendant complained on appeal of the absence of a § 8.07(b)
instruction; that is, the jurors were not told that the defendant could not be convicted for
conduct committed before his seventeenth birthday. Id. at 486; see TEX. PENAL CODE
ANN. § 8.07(b).
The court of criminal appeals reviewed whether such an instruction was law
applicable to the case or an unrequested defensive issue. Taylor, 332 S.W.3d at 486–
87. The court noted that “[d]ue to the repeated testimony regarding the [defendant’s]
pre-seventeen conduct, the absence of an 8.07(b) instruction in the jury charges is
problematic[.]” Id. at 488. It also noted that the jury was instructed that it could ignore
the dates cited in the indictments and could convict the defendant for any offenses
committed within the period of limitations. Id. The court concluded that, under those
specific circumstances, § 8.07(b) was law applicable to the case on which the trial court
had a duty to instruct the jury even in the absence of a request or objection by the
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defendant. Id. at 488–49. Accordingly, the court held that the absence of a § 8.07(b)
instruction, when combined with evidence of the defendant’s conduct while he was a
juvenile and the instruction that a conviction could be based on any conduct within the
limitations period, “resulted in inaccurate charges that omitted an important portion of the
law applicable to the case.” 6 Id. at 489.
We find Taylor controlling but distinguishable. Like Taylor, the jury charge in this
case instructed that the State was not bound by the specific dates alleged and that the
jury could convict the defendant if the offenses were committed at any time within the
period of limitations. However, the absence of a § 8.07(b) instruction was “problematic”
in Taylor because the jury “received evidence upon which they were statutorily prohibited
from convicting [the defendant],” i.e., “repeated testimony regarding [the defendant’s] pre-
seventeen conduct.” Id. at 487. There was no such evidence in this case. To the
contrary, J.L.’s testimony focused entirely on an incident that occurred over two months
after appellant turned seventeen. 7 Unlike Taylor, there was no testimony in this case
discussing any offenses that appellant might have committed prior to turning seventeen.
Under these circumstances, we conclude that neither the instruction proposed by
appellant on appeal nor the more general § 8.07(b) instruction constituted law applicable
to the case. Therefore, the trial court was not required to sua sponte include the
6 The court ultimately concluded, however, that the error did not result in egregious harm. Taylor
v. State, 332 S.W.3d 483, 493 (Tex. Crim. App. 2011). It explained, “The defensive theory was that no
sexual abuse occurred at any time. It is unlikely that the jury believed that [the defendant] sexually
assaulted the victim before he turned 17 years old but not after[.]” Id.
7 We note that D.H. could not specifically recall the date that J.L. told her about the alleged assault.
However, in light of J.L.’s specific and uncontroverted testimony that the assault occurred in February of
2014 and her disclosure to her mother three months later in May, we are unpersuaded by appellant’s
contention that the jury considered any pre-seventeen conduct in reaching its verdict.
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instruction, and the jury charge was not erroneous for the omission. See id. at 486. We
overrule appellant’s second issue.
Appellant brings two related issues. In his third issue, appellant argues that his
trial counsel was ineffective for failing to object to the jury charge on the basis asserted
in his second issue. In his fourth issue, appellant argues that the trial court erred by
failing to grant his motion for new trial because his counsel was ineffective for failing to
object to the jury charge. Because we have concluded that the jury charge was not
erroneous, it necessarily follows that appellant cannot establish an ineffective-assistance-
of-counsel claim related to his counsel’s failure to object to the charge. See Cardenas
v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000) (explaining that an appellant must
show that he is entitled to a jury instruction to establish that his counsel was ineffective
for failing to request the instruction). Accordingly, we overrule appellant’s third and fourth
issues.
IV. DOUBLE JEOPARDY
By his fifth issue, appellant argues that his convictions for both indecency with a
child by contact and aggravated sexual assault of a child arise from a single act and
violate the Double Jeopardy Clause’s guarantee against multiple punishments for the
same offense. See U.S. CONST. amend. V; see also TEX. CONST. art. 1, § 14. The State
agrees and requests that we vacate appellant’s conviction for the lesser offense of
indecency with a child by contact.
The Fifth Amendment to the United States Constitution protects against double
jeopardy, providing that no person shall “be subject for the same offense to be twice put
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in jeopardy of life or limb.” Id. The Double Jeopardy Clause protects an accused
against (1) a second prosecution for the same offense after an acquittal; (2) a second
prosecution for the same offense after a conviction; and (3) multiple punishments for the
same offense in a single prosecution. Ex parte Amador, 326 S.W.3d 202, 205 (Tex.
Crim. App. 2010). A multiple-punishments double-jeopardy violation may arise in the
context of lesser-included offenses when the same conduct is punished under both a
greater and a lesser-included statutory offense. Aekins v. State, 447 S.W.3d 270, 274
(Tex. Crim. App. 2014). Indecency with a child is a lesser-included offense of
aggravated sexual assault of a child when both offenses are predicated on the same act.
Evans v. State, 299 S.W.3d 138, 143 (Tex. Crim. App. 2009). Here, the record
establishes only a single act—appellant’s penetration of J.L.’s sexual organ with his
fingers. Accordingly, we agree with the parties that appellant’s convictions for both
indecency with a child by contact and aggravated sexual assault constitute multiple
punishments for the same offense. See id. at 141 (“In [the multiple-punishments]
context, the State may seek a multiple-count indictment based on violations of different
statutes, even when such violations are established by a single act; but the defendant
may be convicted and sentenced for only one offense.”). We sustain appellant’s fifth
issue.
The remedy for a double jeopardy violation in the multiple-punishments context is
to retain the conviction and sentence for the most serious offense, while setting aside the
conviction and sentence for the lesser offense. Littrell v. State, 271 S.W.3d 273, 279
(Tex. Crim. App. 2008); Bigon v. State, 252 S.W.3d 360, 372 (Tex. Crim. App. 2008).
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The most serious offense is typically the offense in which the greatest sentence is
assessed. Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006). Here,
appellant received a seven-year sentence for each conviction. Therefore, we must look
to other factors, such as the degree of felony for each offense. See Bigon, 252 S.W.3d
at 373. Aggravated sexual assault of a child is a first-degree felony, while indecency
with a child by contact is a second-degree felony. TEX. PENAL CODE ANN. §§ 21.11,
22.021. Under these circumstances, we conclude that the “most serious” offense is
aggravated sexual assault of a child. See Bigon, 252 S.W.3d at 372. Therefore, we
must vacate the conviction for the lesser offense of indecency with a child by contact.
See id.
V. CONCLUSION
We affirm the judgment of conviction for aggravated sexual assault of a child. We
reverse appellant’s conviction for indecency with a child by contact and render a judgment
of acquittal.
LETICIA HINOJOSA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
22nd day of August, 2019.
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