Agustin Osorio AKA Agustin Osorio-Solorzano v. State ( 2021 )

NUMBER 13-19-00294-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
AGUSTIN OSORIO AKA
AGUSTIN OSORIO-SOLORZANO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 54th District Court
of McLennan County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Tijerina
Memorandum Opinion by Justice Tijerina
Appellant Agustin Osorio aka Agustin Osorio-Solorzano was convicted of one
count of continuous sexual abuse of a young child, a first-degree felony. See TEX. PENAL
CODE ANN. § 21.02. Osorio received a life sentence of confinement. By four issues, Osorio
contends that the evidence is insufficient to prove identity (issue one), and there are
several errors in the jury charge (issues two through four). We affirm.1
I. BACKGROUND
At trial, J.O. testified that she is currently eighteen years old, she was born on
January 27, 2001, and her biological father is “Agustin.” The record reflects that when
asked to identify her father, J.O. “pointed to the Defendant[/appellant] in this case.” J.O.
testified that her father left her home in 2010 when she was approximately nine or ten,
and she had not seen him again until 2019. The State asked J.O. if she recalled “how
many times something happened between [J.O.] and the Defendant?” J.O. replied, “I can’t
tell you exactly how many times because it happened so many times.” J.O. stated that
“things” began to happen when she was in first grade. J.O. testified that “it would happen
in the rest room, my mom’s room, my room, and the computer room” and “quite
frequently.” J.O. explained that Osorio would “touch” her “inappropriately” and “[h]e would
usually just . . . touch [her genitals] with his fingers, you know.” J.O. stated that the abuse
continued while she was in second grade, and she agreed with the State that she was in
second grade in the 2008 to 2009 school year. J.O. acknowledged that Osorio’s fingers
would sometimes “go inside” and outside her genitals. J.O. explained that Osorio “would
put me on top of [a] towel thing and there would be a window that I would look outside of
and he would—he would take my bottoms off and he would insert his genitals into my
genitals while I looked outside.” According to J.O., this happened “too many times to
count.” J.O. knew that Osorio had finished when he would “go away,” and “pull up his
1 This case was transferred from the Tenth Court of Appeals in Waco to this Court pursuant to a
docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
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pants.” J.O. took a shower after these encounters because she said, “it felt disgusting”
and “sticky.”
J.O. testified that Osorio would stand her on a chair in her closet, and “he would
put his genitals inside of [her genitals].” J.O. said that during these encounters, she faced
Osorio. J.O. stated, “I don’t even know how many times it happened,” but it usually
occurred during the day. J.O. recalled another occurrence where, while on her bed,
Osorio put her on his lap and rubbed his fingers on her genitals over her clothes. J.O.
testified that she tried to prevent these attacks by not wearing dresses, which she
enjoyed, and by wearing tight belts; however, her efforts did not work because Osorio
would unbuckle her belt. J.O. stated that she would also attempt to avoid Osorio’s actions
by staying with her brothers, which sometimes worked. J.O. testified that these acts
occurred throughout her life from when she was in first grade until she was in fourth grade.
J.O. recalled that one time in her mother’s room, when her mother was in the
hospital in November 2010, Osorio woke her up and touched her genitals causing her
genitals to bleed. J.O. said that Osorio was touching her genitals with his hand and that
it hurt. J.O. was nine years old at that time.
J.O. eventually told her mother that Osorio “was touching” her. Her mother
reported Osorio’s actions to the police. However, J.O. said that she never told her mother
“the kind of detail that [she] told the jury . . . . ”
Ann Sims, M.D., the former medical adviser for the Children’s Advocacy Center,
testified that she interviewed J.O. and documented J.O.’s history in her report as follows:
When I asked [J.O.] why she was here today, she said that her dad had
touched her private area lots of times with his hand. She said that she thinks
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it started when she was in the 2nd grade. She said it would happen in
different rooms at their house in the daytime while her mother and older
brother were away (“went to the store for groceries”), sometimes when she
was alone and sometimes when her little brothers were there. She said he
would touch her on top of and under her clothes, and that he would slip his
hand down the front of her pants and under her panties. She said that his
hand would go “inside” her private and that it would hurt. [J.O.] also told me
that her dad would pull her pants down and put his private into her bottom
from the back, usually while they were standing up. She said that it hurt and
left gooey white stuff on her bottom. She said he would also do it from the
front, put his private into her private, and that it would also leave the gooey,
white stuff. She said she would go to the bathroom afterwards and take a
shower, and that sometimes her dad would tell her to take a shower. [J.O.]
said that one time, when her dad was staying with her while her mom was
in the hospital having her baby, after he put his private part in her bottom,
that she saw a spot of blood on the toilet tissue. She said that particular time
he came in while she was lying in her bed at night and did it and that it hurt
worse than ever. She also said that [three] times, while she was playing
games on the computer, he came in and she switched to the car games he
liked and walked away, but he grabbed her and put her on his lap and
slipped his fingers inside her panties and touched her front private. [J.O.]
said that she would wear a belt to try to keep it from happening, so he
couldn’t pull her pants down and slip his hand in. She said she was afraid
to tell because “my mom told me that when she was younger my dad would
hit her.” [J.O.] said she finally told her mom because she was “tired of it.”
Dr. Sims concluded her report as follows: “Assessment—Detailed history of
chronic sexual abuse Genital exam consistent with history Recommendations—This child
needs to be screened for HIV and syphilis. She needs counseling and therapy.”
Detective Maria J. Bucher of the Waco Police Department testified that she
acquired a warrant to arrest Osorio based on J.O.’s allegations; however, Detective
Bucher had to refer the warrant to the fugitive task force because after two months of
trying, she was unable to locate Osorio. According to Detective Bucher, after five years
of trying to locate him, Osorio was found and arrested.
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G.M. testified that she has five children, including J.O. and her son A.A.O.M. G.M.
stated that J.O. told her that Osorio had sexually abused her on multiple occasions. G.M.
confronted Osorio, and he denied the allegations. According to G.M., after reporting the
allegations to the police, Osorio went to Mexico.
On cross-examination, Osorio’s defense counsel showed G.M. several pictures
admitted as defense exhibits and asked her to identify the pictures. G.M. said that the
pictures were of her and her children and were taken after Osorio left for Mexico. Defense
counsel asked if Osorio requested the pictures, and she replied, “Yes. In fact, those
weren’t all for him. Some of them were for my mother. And my mother says she never
received them.” G.M. said, “I sent them to [Osorio], and he was supposed to give them to
[G.M.’s mother] because [Osorio] had sent a man to pick up a car that he had here [with
G.M.]. And along with that car, I sent the pictures.” G.M. explained she “would send him
whatever he would ask . . . for” because according to G.M. she “was scared he would hurt
[her] family.” G.M. said, “[I asked] Detective Bucher . . . where is he and what can we do
about this. And she said, there’s nothing I can do while he’s . . . in Mexico.”
On re-direct examination, the State asked G.M., “Is [your ex-husband] in the
courtroom with us today?” G.M. replied, “I don’t see him.” G.M. denied that Osorio, who
was seated at the defense table, was her ex-husband. G.M. explained that Osorio, who
was seated at the defense table and wearing a white shirt, looked thinner and older than
how she recalled her ex-husband’s appearance. She said that her ex-husband had black
hair. G.M. agreed with the State that it had been nine years since she had seen her ex-
husband and that it was possible that he had “changed what he looked like since then.”
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J.O.’s brother A.A.O.M. testified that he had not seen his biological father, named
Agustin Osorio, since he was twelve years old, which was approximately nine or ten years
prior to the trial. The State asked A.A.O.M. if he recognized anyone in the courtroom to
be his father, and A.A.O.M. responded that perhaps Osorio was his father. The State
informed A.A.O.M. that Osorio had facial reconstructive surgery and asked, “would that
explain why the person at the end of the table might not look like the person that you
knew?” A.A.O.M. replied, “Possibly. Yeah, I’d believe that.”
On redirect examination, the State asked A.A.O.M. if he saw any relatives in the
courtroom. A.A.O.M. said, “I see one . . . [t]he guy right there in the back with the stripe
shirt.” The State asked, “So the guy in the stripe shirt in the white is that your uncle?”
A.A.O.M. responded, “I believe he is, yeah.” A.A.O.M. stated that he also saw a person
he believed to be his grandmother, Osorio’s mother, in the courtroom. The State asked,
“So does it make sense that the person in the courtroom today is your father—he looks
very different—because his brother is here, his mother is here; is that right?” A.A.O.M.
replied, “Yes.” The State said, “Okay. So it’s not like we have the wrong Agustin Osorio,
correct?” A.A.O.M. stated, “Yes.” The State showed A.A.O.M., State’s exhibit 19, a picture
of Osorio prior to his facial reconstructive surgery and asked, “Does the person in State's
Exhibit No. 19 look familiar to you at all as the person who was your father some six years
before this was taken?” A.A.O.M. said, “He does look familiar, yes.” A.A.O.M. explained
that the mouth area and the eyes looked familiar.
Juana Solorzano Zepeda, Osorio’s mother, testified that the defendant identified
as Osorio is her son and that her other son, “Juan,” was also in the courtroom.
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Specifically, Zepeda said, “Agustin Osorio Solorzano [,my son,] is present, but he is here
as a prisoner.” The State asked if Zepeda had seen her former daughter-in-law, identified
as G.M. in the courtroom. Zepeda said no, but she did not deny that G.M. was the name
of her former daughter-in-law. The State asked Zepeda if she had seen her grandson,
A.A.O.M. Zepeda said, “When he passed by a while ago, yes.” The State repeated that
Zepeda had seen A.A.O.M. and that A.A.O.M. is Osorio’s son. Zepeda said, “Yes.” The
State asked if Zepeda had seen her granddaughter identified as J.O., and Zepeda said
she had not. However, Zepeda did not deny that J.O. was her granddaughter. The State
showed Zepeda State’s exhibit 19 and asked, “Is this [Osorio] before he had his facial
reconstruction surgery?” Zepeda requested to see the picture closer and replied, “Yes.”
Zepeda explained, “At the time of this picture, my son had not been beaten up and had
not lost his teeth. He was complete.”
The jury found Osorio guilty. The trial court sentenced him to life in prison. This
appeal followed.
II. IDENTITY
In his first issue, Osorio contends that the evidence is insufficient because the
State failed to prove that he committed the charged offense. Specifically, Osorio argues
that at trial the witnesses did not recognize him. Osorio does not challenge the other
elements of continuous sexual abuse of a child. See TEX. PENAL CODE ANN. § 21.02(b)(2).
A. Standard of Review and Applicable Law
In determining the sufficiency of the evidence, we consider all the evidence in the
light most favorable to the verdict and determine whether a rational fact finder could have
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found the essential elements of the crime beyond a reasonable doubt based on the
evidence and reasonable inferences from that evidence. Whatley v. State, 445 S.W.3d
159, 166 (Tex. Crim. App. 2014); Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim.
App. 2010) (plurality op.). The fact finder is the exclusive judge of the facts, the credibility
of witnesses, and the weight to be given their testimony. Brooks, 323 S.W.3d at 899. We
resolve any evidentiary inconsistencies in favor of the judgment. Id.Sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex.
Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). “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 particular offense for which the
defendant was tried.” Villarreal, 286 S.W.3d at 327; see Malik, 953 S.W.2d at 240.
A person commits the offense of continuous sexual abuse of a child if “during a
period that is 30 or more days in duration, the person commits two or more acts of sexual
abuse” and “the actor is 17 years of age or older and the victim is a child younger than 14
years of age.” TEX. PENAL CODE ANN. § 21.02(b)(2). The statute defines “acts of sexual
abuse” to include the offenses of indecency with a child by sexual contact, id.
§ 21.11(a)(1), and aggravated sexual assault, id. § 22.021. As charged here, Osorio
committed continuous sexual abuse of a child if he committed two or more acts of either
aggravated sexual assault of a child, indecency with a child by contact, or both during the
requisite time period. See id. at § 21.02(b)(2). A person commits aggravated sexual
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assault of a child if he intentionally or knowingly causes the penetration of the sexual
organ of a child by any means, or causes the sexual organ of a child to contact or
penetrate the sexual organ of another person, including himself. Id. § 22.021(a)(1)(B)(i),
(a)(1)(B)(iii). A person commits indecency with a child by contact if, with a child younger
than 17 years, whether the child is of the same or opposite sex, the person engages in
sexual contact with the child or causes the child to engage in sexual contact. Id. § 21.11.
“[A]n uncertain in-court identification of an accused as the perpetrator of a crime,
standing alone, is insufficient to support a guilty verdict.” Anderson v. State, 813 S.W.2d
177, 179 (Tex. App.—Dallas 1991, no pet.). Nonetheless, “the identity of a perpetrator of
an offense can be proved by direct or circumstantial evidence.” Earls v. State, 707 S.W.2d
82, 85 (Tex. Crim. App. 1986) (citing Oliver v. State, 613 S.W.2d 270, 274 (Tex. Crim.
App. [Panel Op.] 1981 (op. on reh’g)). Thus, even if the identification is equivocal, or if no
witness positively identifies the defendant as the perpetrator of the offense, corroborating
direct or circumstantial evidence will support a guilty verdict. See id.; Hernandez v. State,
13 S.W.3d 78, 80–81 (Tex. App.—Texarkana 2000, no pet.); Anderson, 813 S.W.2d at
179.
B. Analysis
Here, the jury could have considered the indisputable evidence that Osorio’s
physical appearance in the courtroom was significantly different than it had been at the
time of the assaults and that A.A.O.M., G.M., and J.O. had not seen Osorio for
approximately ten years. Nonetheless, the record reflects that J.O. identified Osorio by
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pointing at him as her father whose name is “Agustin.”
Osorio’s mother identified Osorio in a picture admitted by the trial court showing
how he appeared prior to his substantial facial reconstructive surgery, and Osorio’s
mother confirmed that the defendant was the same person. The jury was able to see
Osorio’s appearance at trial subsequent to his facial reconstructive surgery and compare
it to the picture of how he appeared prior to the surgery.
In addition, G.M. said that her husband’s name was Agustin. Both J.O. and
A.A.O.M. have the surname Osorio and stated that Agustin is the name of their father.
The trial court admitted a defense exhibit which is a warranty deed from Agustin Osorio
as grantor to G.M. as grantee signed in 2011. G.M. testified that her husband, Agustin,
deeded the property to her when he went to Mexico in 2011. G.M. testified that her
husband went to Mexico when she reported the sexual abuse to the police in 2011.
Zepeda corroborated that Osorio had been in the United States with his family until he
went to Mexico in 2011.
Zepeda further testified that she saw her grandson, A.A.O.M., in the courtroom
during the proceedings and that A.A.O.M. is Osorio’s son. Specifically, the State asked
Zepeda if she had seen A.A.O.M. and if A.A.O.M. is Osorio’s son, and Zepeda said, “Yes.”
Zepeda did not deny that her granddaughter is named J.O. and that her ex-daughter-in-
law who was married to Osorio is named G.M.
A.A.O.M. testified that he had seen a person he believed to be his father’s mother
and brother in the courtroom, and Zepeda corroborated that she and her son, A.A.O.M.’s
uncle “Juan” were in the courtroom and that she had seen A.A.O.M., Osorio’s son. Finally,
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Osorio offered, and the trial court admitted into evidence, pictures of J.O., A.A.O.M., G.M.,
and her other children, which G.M. sent to Osorio at his request when he was in Mexico.
The jury was presented with several witnesses and many pieces of evidence
supporting its verdict in what could surely be considered a fact-intensive case. As the fact
finder, the jury was entitled to consider all of this, weigh the witnesses’ testimony and
credibility, and resolve the issue in favor of the verdict. From the evidence presented, the
jury could have reasonably inferred that Osorio is J.O.’s father, the person she claims
sexually abused her. Accordingly, we find that based on the record in this case, a rational
jury could have reasonably found that the State established beyond a reasonable doubt
Osorio as the person who committed the offense. See Whatley, 445 S.W.3d at 166;
Brooks, 323 S.W.3d at 898–99. We overrule Osorio’s first issue.
III. CHARGE ERROR
By his second through fourth issues, Osorio contends that there was error in the
jury charge warranting reversal. Specifically, by his second issue, Osorio argues that the
jury charge improperly included the definitions of both intentional and knowing conduct
while indecency with a child only allows a conviction for intentional conduct. By his third
issue, Osorio argues that “the abstract definition of ‘intent/intentional,’ . . . reflected both
result-of-conduct and nature-of-conduct; and of ‘knowledge/knowingly,’ . . . reflected both
nature-of-conduct and circumstances-of-conduct.” By his fourth issue, Osorio argues that
there is error in the charge because “[t]he trial court failed to properly instruct the jury on
the applicable chronological perimeter.”
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A. Standard of Review
Analysis of jury charge error requires a two-step process. Abdnor v. State, 871
S.W.2d 726, 731 (Tex. Crim. App. 1994); see Sakil v. State, 287 S.W.3d 23, 25–26 (Tex.
Crim. App. 2009). First, we determine whether error exits, and if so, we then must
determine whether the appellant suffered harm from that error. See Abdnor, 871 S.W.2d
at 731–32. The degree of harm required for reversal depends on whether the appellant
objected to the jury charge at trial: if the appellant did not object, we must decide whether
the error was so egregious and created such harm that the appellant did not have a fair
and impartial trial—in short, that “egregious harm” has occurred. Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see TEX. CODE CRIM. PROC. ANN.
art. 36.19; Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008); Hutch v. State,
922 S.W.2d 166, 171 (Tex. Crim. App. 1996).
In response to Osorio’s second issue, the State does not contest that the
application paragraph in the charge regarding indecency with a child was erroneous
because it improperly included the definitions of both intentional and knowing conduct.
Moreover, the State concedes error as to the definitions of intentionally and knowingly as
argued by Osorio in his third issue that “the abstract definition of
‘intent/intentional,’ . . . reflected both result-of-conduct and nature-of-conduct; and of
‘knowledge/knowingly,’ . . . reflected both nature-of-conduct and circumstances-of-
conduct.” Therefore, we will assume without deciding that there is error on these two
grounds, and we will conduct an egregious harm analysis as to Osorio’s second and third
issues because he did not object to the charge in the trial court. See Almanza, 686 S.W.2d
12at 171.
In conducting an egregious harm analysis, “the actual degree of harm must be
assayed in light of the entire jury charge, the state of the evidence, including the contested
issues and weight of probative evidence, the argument of counsel and any other relevant
information revealed by the record of the trial as a whole.” Id. Our review must assay the
actual, not just theoretical, harm to the accused. Id. at 174. Egregious harm is difficult to
prove and must be determined on a case-by-case basis. Ellison v. State, 86 S.W.3d 226,
227 (Tex. Crim. App. 2002). Egregious harm is the type and level of harm that affects the
very basis of the case, deprives the defendant of a valuable right, or vitally affects a
defensive theory. Allen, 253 S.W.3d at 264 & n.15; Olivas v. State, 202 S.W.3d 137, 144,
149 (Tex. Crim. App. 2006); Almanza, 686 S.W.2d at 172.
B. Mens Rea (Issues Two and Three)
Looking at the charge as a whole, the abstract portion and the application portion
of the charge accurately stated the substantive law of continuous sexual assault of a child;
thus, informing the jury of what the State had and did not have to prove. The record
reflects that from voir dire onward, the jury was informed that continuous sexual abuse of
a child required a finding of two predicate offenses of either aggravated sexual assault of
a child or indecency with a child—separated by at least thirty days. In addition, the
abstract portion accurately stated the substantive law on the offense of indecency with a
child—including the specific intent to arouse or gratify—thus informing the jury of what
the State had and did not have to prove. Consequently, within the context of the entire
jury charge, the erroneous application paragraph does not appear to have caused
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egregious harm and weighs in favor of finding no harm. See Bazanes v. State, 310
S.W.3d 32, 37 (Tex. App.—Fort Worth 2010, pet. ref’d) (determining that the charge was
not harmful because although the charge erroneously defined “intentionally” and
“knowingly” “and included those terms in the application portion of the charge, it did not
include them in the abstract portion of the charge setting forth the substantive law of
indecency with a child” (citing Chiodo v. State, No. 2–06–096–CR, 2007 WL 1952375, at
*4 (Tex. App.—Fort Worth July 5, 2007, pet. ref’d) (mem. op., not designated for
publication); Fulcher v. State, 274 S.W.3d 713, 718–19 (Tex. App.—San Antonio 2008,
pet. ref’d))).
Next, except for the occurrence of the alleged offenses, Osorio did not dispute any
of the facts. 2 Accordingly, the contested issue at trial was witness credibility; J.O.’s
testimony contained all of the elements of continuous sexual abuse of a young child and
the predicate offenses, and based on the verdict, the jury found her testimony credible.
See Bazanes, 310 S.W.3d at 37 (holding that because the primary issue, among others,
at trial was the credibility of the witnesses, the error in the charge was not egregiously
harmful). Thus, the jury could have inferred the specific intent required for the predicate
offenses, including indecency with a child, from J.O.’s testimony describing Osorio’s
conduct, remarks, and all of the surrounding circumstances during the alleged crime. See
id. That is, the jury, as the sole judge of J.O.’s credibility and the weight to be given to her
testimony, could have inferred that Osorio committed the predicate offense of indecency
2 Osorio did not argue at trial as he now appears to argue on appeal that this is a case of mistaken
identity.
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with a child at least two times by contact and that he had the intent to arouse or gratify
his sexual desire when he touched her genitals with his fingers. See id. Moreover, the
evidence supports a finding by the jury that Osorio committed the predicate offense of
aggravated sexual assault at least two times during a period that is thirty or more days in
duration based on J.O.’s testimony that Osorio put his penis inside her vagina “too many
times to count” from the time she was in first grade until she was in fourth grade.
As to the argument of the parties at trial, neither the State did nor Osorio’s trial
counsel discussed the requisite specific intent of indecency with a child and aggravated
sexual assault of a child. Consequently, the jury was not misled by the arguments of
counsel.
On this record, therefore, it is logical to suppose that the jury unanimously agreed
that Osorio committed all the separate instances of criminal conduct during each of the
incidents as described by J.O. See Cosio v. State 353 S.W.3d 766, 778 (Tex. Crim. App.
2011). Accordingly, actual harm has not been shown, and we cannot say that Osorio was
denied a fair and impartial trial. See id. Based on our review of the charge, the evidence,
the arguments of counsel, and other relevant information, we conclude that the
complained-of errors in the jury charge did not cause egregious harm to Osorio. We
overrule Osorio’s second and third issues. See Almanza, 686 S.W.2d at 171.
C. Effective Date of Offense
By his fourth issue, Osorio contends that the jury charge contains error because it
allowed the jury to consider acts committed before September 1, 2007, which is the
effective date of the statute creating the offense of continuous sexual abuse of a child.
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Specifically, Osorio argues as follows:
The court properly instructed the jury on page 6 of the charge that they could
consider only acts of sexual abuse, if any, that were committed after
September 1, 2007. However, the court instructed the jury 2 pages later that
the State was not bound by any particular date and that a conviction could
be based on conduct that occurred “at any time prior to the filing of the
indictment.” The court erred by failing to include a chronological perimeter
with this latter instruction.
The trial court instructed the jury, in relevant part, as follows:
The Defendant, Agustin Osorio, aka Agustin Osorio-Solorzano, stands
charged by indictment with the offense of Continuous Sexual Abuse of
Young Child or Children, as alleged in the indictment, alleged to have been
committed during a period that was 30 or more days in duration, to-wit: from
on or about the 1st day of January, 2008 through the 1st day of December,
2010, in McLennan County, Texas. To this charge, the Defendant has
pleaded not guilty.
....
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. You are instructed you
may only consider acts of sexual abuse, if any were committed, that
occurred after September 1, 2007. [(Emphasis added)].
....
You are further charged that it is the law in this case that the State is not
bound to prove the exact dates alleged in the indictment but may prove the
offense, if any to have been committed at any time prior to the filing of the
indictment. The jury is instructed that the Court has taken judicial notice that
the date the indictment in this case was presented was February 17, 2016,
and that there is no statute of limitations for the offense charged in the
indictment.
In the application portion of the charge, the trial court instructed, in relevant part,
as follows:
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Now If you find from the evidence beyond a reasonable doubt that the
Defendant, Agustin Osorio, aka Agustin Osorio-Solorzano, in McLennan
County, Texas, did then and there, during a period that was 30 or more days
in duration, to-wit: from on or about the 1st day of January, 2008 through
the 1st day of December, 2010, when Defendant was seventeen (17) years
of age or older, commit two or more acts of sexual abuse against Jane Doe,
a pseudonym, namely, the Defendant did then and there intentionally or
knowingly cause the sexual organ of Jane Doe, a pseudonym, a child who
at the time was younger than fourteen (14) years of age, to contact the
sexual organ of Defendant . . . .
It must be assumed that the jurors read and understood the charge as a whole and
that they took both limiting instructions into account in their deliberations. Hutch, 922 S.W.
2d at 172. Here, the two instructions are not contradictory; rather, together they instructed
the jury that the State need not prove an exact date of commission between January 1,
2008, and December 1, 2010. The trial court also instructed that the jury could not convict
Osorio for any act committed before September 1, 2007. The jury was properly instructed
that it could only convict Osorio for acts that he committed between January 1, 2008, and
December 1, 2010. This time period is not prior to September 1, 2007. Thus, although the
charge stated that “the State is not bound to prove the exact dates alleged in the
indictment but may prove the offense, if any to have been committed at any time prior to
the filing of the indictment,” it also clarified that the jury could only find Osorio guilty for
acts occurring only after September 1, 2007 between the dates January 1, 2008, and
December 1, 2010. Therefore, taken as a whole, the jury charge properly instructed the
jury that it could only find Osorio guilty if he committed the alleged acts anytime between
January 1, 2008, and December 1, 2010, and it could not consider evidence of acts of
17
sexual abuse, if any, that were committed prior to September 1, 2007.3 See Casanova v.
State, 383 S.W.3d 530, 543 (Tex. Crim. App. 2012) (acknowledging that the usual
presumption is that jurors follow the trial court’s explicit instructions to the letter).
Accordingly, we conclude that there is no error in the jury charge on this basis. We
overrule Osorio’s fourth issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
JAIME TIJERINA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
4th day of February, 2021.
3 We note that J.O. was born on January 27, 2001, and she did not recall any sexual abuse
occurring until she was in first grade in approximately 2007 to 2008.
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