David Ignacio Cristan v. the State of Texas ( 2023 )

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’
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”).
2
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
3
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
4
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
5
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.
6
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.”
7
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
8
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.
9
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.
10
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.
11
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
12
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).
13
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.
14
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
15
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
16
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.
17
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:
18
(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;
19
(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:
20
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).
21
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
22
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 . . .”).
23
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,
24
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”).
25
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.
26
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.
27
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.”
28
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).
29
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.”).
30
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 lesser-
included 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.
31
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.
32
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,
33
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.
34
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.
35
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 hotly-
contested 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
36
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
14Although 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).
37
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
38
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.
39
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.
40
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
41
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.
42
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.
43
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”).
44
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
45
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”).
46
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.
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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).
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