IN THE TENTH COURT OF APPEALS
No. 10-19-00116-CR
AMADEO RAMIDEZ CASTILLEJA, JR., Appellant v.
THE STATE OF TEXAS, Appellee
From the 82nd District Court Falls County, Texas Trial Court No. 10096
MEMORANDUM OPINION
The jury convicted Amadeo Ramidez Castilleja, Jr., Appellant, of the offense of
continuous sexual abuse of a young child and assessed his punishment at confinement
for twenty-five years. The trial court sentenced him accordingly. We affirm.
Appellant presents four issues on appeal. First, Appellant maintains that the trial
court abused its discretion when it admitted the testimony of an expert witness called by
the State. In his second issue on appeal, Appellant contends that the trial court failed to properly instruct the jury on the culpable mental states that apply in this case. Next,
Appellant asserts that when the trial court charged the jury in the abstract, it erroneously
commented on the evidence. Finally, in Appellant’s fourth issue on appeal, Appellant
argues that the evidence was factually insufficient to support the verdict.
We will first take up Appellant’s complaint that the evidence is factually
insufficient to support the verdict. Appellant does not contend that the evidence is legally
insufficient to support the verdict.
Appellant essentially invites this court to decline to follow precedent from the
Texas Court of Criminal Appeals in matters involving sufficiency of the evidence. We
have declined that invitation before, and we decline it again. See e.g., Zahirniak v. State,
No. 10-16-00336-CR, 2019 WL 1837340, at *3 (Waco April 24, 2019, pet. ref’d
(memorandum op., not designated for publication) (citing Martinez v. State, 327 S.W.3d
727, 730 (Tex. Crim. App. 2010); Baker v. State, No. 10-10-00049-CR, 2019 WL 2242571, at
*5 (Waco June 8, 2011, pet. ref’d) (mem. op., not designated for publication). This court
noted in Baker, that, although the opinion in Brooks v. State, 323 S.W.3d 893 (Tex. Crim.
App. 2010) was a plurality, “the Court of Criminal Appeals has since affirmed the
elimination of factual sufficiency review with an outright majority. See Howard v. State,
333 S.W.3d 137 (Tex. Crim. App .2011) (unanimous op.) (“we have abolished factual-
sufficiency review”); Martinez v. State, 327 S.W.3d 727, 730 (Tex. Crim. App. 2010)
Castilleja v. State Page 2 (Meyers, J. dissented); Wirth v. State, 327 S.W.3d 164, 165 (Tex. Crim. App. 2010) (Meyers,
J. dissented).” Id.
When we evaluate the sufficiency of the evidence, we view all the evidence in a
light most favorable to the verdict and determine whether any rational finder of fact
could have found the existence of the elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307 (1979); Liverman v. State, 470 S.W.3d 831, 835-36 (Tex. Crim.
App. 2015). The appellate court's duty is not to sit as a thirteenth juror reweighing the
evidence or deciding whether it believes the evidence established the elements in
question beyond a reasonable doubt. Blankenship v. State, 780 S.W.2d 198, 206–07 (Tex.
Crim. App. 1988). The sufficiency test must be applied to the application paragraph in a
hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997).
Viewed in the light most favorable to the verdict, the evidence shows that J.C. was
born on January 31, 2005. J.C.’s mother, Jessica, and her father, Mark, were living together
at the time that J.C. was conceived. After J.C. was born, Mark and Jessica had an “on-
and-off” relationship and they ultimately married other people.
Appellant is Mark’s father; Stella is Mark’s mother. When J.C. was younger, she
spent a good bit of time with them, including overnight visits. J.C. called Appellant “Po-
Po” and she called Stella “Mi-Mi.”
Castilleja v. State Page 3 J.C. testified that when she was about five or six, her Po-Po began to touch her
inappropriately. He continued to sexually assault her until January 2016 when she was
about eleven years old and had begun her menstrual cycle.
J.C. testified about the first assault that she remembers. Again, she was about five
or six years of age. She was sitting on a couch in the living room at Appellant’s house.
Appellant came over to the couch and sat her on his lap. He took his penis out of his
pants, put her hand on it, and “guided my hand up and down.” J.C. testified that she did
not look at Appellant because she was afraid.
J.C. told the jury that after that first time, the assaults continued until she was
eleven. During that time, Appellant touched her breasts, made her wrap her hand around
his penis while he “guided” her hand up and down, put his hand in her pants, penetrated
her vaginal cavity with his finger, forced her to perform oral sex on him, and he
performed oral sex on her. J.C. testified that Appellant never penetrated her vagina with
his penis. She recalls only two times that she saw a “white substance” come out of
Appellant’s penis. All the assaults occurred in Appellant’s house when J.C.’s Mi-Mi was
gone for a morning walk or when she was otherwise absent. The assaults happened
many, many times, “possibly too many times to count.”
In addition to her testimony about the first time that Appellant assaulted her, J.C.
also testified about the last time that Appellant assaulted her. Appellant touched her
breast area and he touched her under her clothing as he had earlier that day. J.C. told
Castilleja v. State Page 4 Appellant, “You can’t do this to me forever.” Appellant replied, “I can as long as I can
keep you from telling. Yes, I can.” Appellant had threatened to hurt her or somebody if
she told anyone what was happening. Nonetheless, at this point, J.C. told him, “No. Stop.
You can’t do this to me.” Appellant again said, “Yes, I can.” But the assaults stopped.
J.C.’s mother, Jessica, testified that J.C. had begun seeing counselors when she was
around six or seven years old. J.C. was “not very much available.” She did not want to
talk about things that were bothering her.
In 2016, J.C. received counseling services because she was exhibiting bad hygiene,
did not want to wear make-up and dresses like the other girls, was reclusive, and had
been the subject of bullying. Additionally, J.C. had threatened to hurt herself.
On January 6, 2017, J.C.’s father, Mark, died in a one-vehicle accident. J.C. and
Mark had a close relationship and J.C. “was devasted.” The abuse had stopped by the
time that Mark died.
Jessica testified that in May 2017, some four months after Mark died, J.C., for the
first time, told her that Appellant had been assaulting her. J.C. told her mom about the
details of the assaults. This was the first time that J.C. had discussed the details of the
assaults with anyone. J.C. testified about the same incident: “[a]nd I felt like once [my
dad] got to heaven and, you know, saw what was really going on, he told me, you know,
just put it in my heart, like, it was time, because this had been going on for too long ... [i]t
was just too heavy on my heart.”
Castilleja v. State Page 5 Because J.C. was afraid that Appellant would hurt someone if she told, and,
because she was afraid that she would have to talk to someone about the assaults and go
to court, she never mentioned the assaults to any of her counselors. J.C. never recanted
the allegations of sexual abuse that she had made against Appellant.
As we have noted, Appellant makes no claim that the evidence is legally
insufficient to support his conviction. Therefore, he concedes that the evidence is
sufficient under the Jackson standard of review. See, e.g., Sanders v. State, No. 10-14-00211-
CR, 2015 WL 2170229, at *1 (Tex. App.—Waco May 7, 2015, pet. ref'd) (mem. op., not
designated for publication) (“By asking this Court to only review the factual sufficiency
of the evidence, Sanders concedes the evidence is sufficient under the Jackson standard of
review.”).
Even if we were to examine the evidence under Jackson, we would hold that the
evidence that we have outlined is sufficient. The testimony of a child victim is alone
sufficient to support a conviction for continuous sexual abuse of a child. TEX. CODE CRIM.
PROC. ANN., article 38.07(a)(West). Further, J.C. testified as to what happened to her and
she had repeated, without retraction, those same events to her mother, to a forensic
interviewer, and to a physician who physically examined her. Any rational finder of fact
could have found the existence of the elements of the offense beyond a reasonable doubt.
We overrule Appellant’s fourth issue on appeal.
Castilleja v. State Page 6 In his first issue on appeal, Appellant asserts that the trial court abused its
discretion when it admitted the testimony of Dr. William Lee Carter, an expert witness
called by the State. Dr. Carter is a psychologist. When the State called Dr. Carter as an
expert witness, Appellant asked the trial court for a Rule 705 hearing. See TEX. R. EVID.
705. The trial court conducted the Rule 705 hearing outside the presence of the jury.
At the conclusion of the Rule 705 hearing, Appellant’s counsel objected that Dr.
Carter’s testimony would simply point out “commonalities that won’t necessarily apply
to any specific person.” Counsel continued, “It certainly does not pass the Frye test or
Daubert test. And we would ask that he not be allowed to testify, and certainly not as an
expert, in front of the jury.” Appellant did not object to Dr. Carter’s qualifications and
neither did he object upon any other grounds.
On appeal, Appellant argues that Dr. Carter’s testimony was not relevant because
“his testimony did not make any fact of consequence more or less probable.” The State
takes the position that because Appellant did not object on relevance grounds in the trial
court, Appellant’s argument on appeal does not comport with the objection levelled in
the trial court and Appellant has waived his complaint.
Even if Appellant has not waived the complaint, we would not find that the trial
court abused its discretion when it allowed Dr. Carter to testify.
Whether to admit evidence at trial is a preliminary question to be decided by the
trial court. TEX. R. EVID. 104(a); Tienda v. State, 358 S.W.3d 633, 637–38 (Tex. Crim. App.
Castilleja v. State Page 7 2012). We review a trial court's ruling on the admissibility of evidence for an abuse of
discretion. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). The trial court
abuses its discretion when its decision lies “outside the zone of reasonable disagreement.”
Buntion v. State, 482 S.W.3d 58, 76 (Tex. Crim. App. 2016) (quoting Apolinar v. State, 155
S.W.3d 184, 186 (Tex. Crim. App. 2005).
Rule 401 of the Texas Rules of Evidence provides: “Evidence is relevant if: (a) it
has any tendency to make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the action.” TEX. R. EVID. 401.
However, Rule 702 of the Texas Rules of Evidence, provides that an expert witness may
“testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand the evidence or to determine a
fact in issue.” TEX. R. EVID. 702 (emphasis added).
During the Rule 705 hearing, Dr. Carter testified that he would not “offer opinions
about the truthfulness of the child’s testimony. What I will offer is information about
how experts like myself analyze and break down a child sex abuse case, given the
complex nature of those kinds of offenses.” He further testified that he would “offer
information that hopefully will help the jury better understand the facts before them, so
that when they are in their deliberations, they will be better informed.”
As we view Dr. Carter’s testimony before the jury, that is exactly the type of
information that he provided and that is provided for in Rule 702. Dr. Carter testified as
Castilleja v. State Page 8 to the dynamics and effects of the victim/perpetrator relationship, the characterization of
sexual perpetrators and victims, a perpetrator’s selection of a victim, and among other
things, reasons for delayed outcries. It appears to us that Dr. Carter’s testimony would
“help the trier of fact to understand the evidence.” The trial court did not abuse its discretion
when it admitted Dr. Carter’s expert testimony. We overrule Appellant’s first issue on
appeal.
In his second issue on appeal, Appellant asserts that the trial court erred when it
failed to properly instruct the jury on the culpable mental states applicable to the offense.
Even if that is so, Appellant did not object to the jury charge and must now show that he
was egregiously harmed by the trial court’s error. When an appellant fails to object or to
present a properly requested jury charge, any error in the charge “should be reviewed
only for ‘egregious harm’ under Almanza.” Madden v. State, 242 S.W.3d 504, 513 (Tex.
Crim. App. 2007); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).
“To be reversible, any unpreserved jury-charge error must result in egregious
harm which affects the very basis of the case, deprives the defendant of a valuable right,
or vitally affects a defensive theory.” Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App.
2006) (citations omitted) (internal quotation marks omitted). A defendant must have
suffered more than theoretical harm, the harm must be actual. Sanchez v. State, 376 S.W.3d
767, 775 (Tex. Crim. App. 2012). Egregious harm is shown when the error “created such
Castilleja v. State Page 9 harm that [the appellant] ‘has not had a fair and impartial trial.’” Almanza, 686 S.W.2d at
171.
In Almanza, the Court of Criminal Appeals outlined four factors that reviewing
courts should consider when determining whether a jury-charge error resulted in
egregious harm: “1) the charge itself; 2) the state of the evidence including contested
issues and the weight of the probative evidence; 3) arguments of counsel; and 4) any other
relevant information revealed by the record of the trial as a whole.” Olivas, 202 S.W.3d
at 144.
As far as the charge itself is concerned, in the abstract portion of the jury charge,
the trial court instructed the jury that a person commits the offense if the person
“intentionally or knowingly . . . causes the penetration of the sexual organ of a child under
the age of 14 by the actor’s finger.” But section 22.021(a)(1)(B)(i) of the Texas Penal Code
defines the offense of aggravated sexual assault, in relevant part, as “caus[ing] the
penetration of the anus or sexual organ of a child by any means.” TEX. PENAL CODE ANN.
§ 22.021(a)(1)(B)(i) (West). The application paragraph accurately tracked the charge in
the indictment.
The application paragraph is the paragraph in a jury charge that authorizes a
conviction. Campbell v. State, 910 S.W.2d 475, 477 (Tex. Crim. App. 1995). Further, the
definition in the abstract paragraph of the jury charge made the State’s proof even more
restrictive than the provisions of the statute. In the application paragraph, the trial court
Castilleja v. State Page 10 limited the jury’s consideration of means of penetration to that alleged in the indictment.
See Thompson v. State, 12 S.W.3d 915, 921 (Tex. App.—Beaumont 2000, pet. ref’d). A
consideration of the jury charge militates against a finding of egregious harm.
When we review the state of the evidence and contested issues, we note that
Appellant’s culpable mental state was never a contested issue. Appellant’s defense was
focused upon his claim that J.C. fabricated the whole story. There was no claim of
accidental touching during a bath or anything of that nature; his defense was that the acts
of sexual assault simply never happened.
To the contrary, J.C. testified to the sexual assaults committed against her by
Appellant. Those allegations were substantiated by other witnesses who testified.
Furthermore, the evidence shows that J.C. never recanted her accusations.
This court faced a similar complaint in Reed. There, Appellant’s defense was that
the child victim had fabricated the outcry and that the sexual assaults never occurred; the
focus was on the credibility of the child victim. There was no contested issue other than
the credibility of the child victim. The court held that even if error existed, it could not
conclude that any such error resulted in egregious harm. Reed v. State, 421 S.W.3d 24
(Tex. App.—Waco 2013, pet. ref’d).
This factor militates against a finding that Appellant suffered egregious harm.
Castilleja v. State Page 11 Neither the State nor Appellant presented mens rea arguments in the trial court.
Therefore, an examination of the third category of inquiry as to egregious harm has a
neutral effect upon our assessment of egregious harm.
We have searched the record for any other relevant information revealed by the
record that would show how Appellant was egregiously harmed and have found none.1
On this record we are not able to say that Appellant suffered egregious harm from
the jury charge error, if there was such error. We overrule Appellant’s second issue on
Appellant, in his third issue on appeal, maintains that the trial court improperly
commented on the evidence in the abstract portion of the jury charge. We believe it
would be advantageous to repeat a portion of our discussion of Appellant’s second issue
on appeal.
As we have said, Section 22.021(a)(1)(B)(i) of the Texas Penal Code defines the
offense of aggravated sexual assault, in relevant part, as “caus[ing] the penetration of the
anus or sexual organ of a child by any means.” TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i)
(West). However, in the abstract portion of the jury charge, the trial court instructed the
jury that a person commits the offense if the person “intentionally or knowingly ... causes
1 In his brief, Appellant refers to the fact that the jury remained hopelessly deadlocked for a time and was able to reach a verdict only after the trial court gave the jury an Allen charge. Then, Appellant argues, in a very little time, the jury returned with an assessment of the minimum punishment. This, Appellant posits, suggests a compromise verdict and weighs in favor of a finding of egregious harm. We disagree. While such a suggestion may seem apparent, there is no evidence in the record to support it.
Castilleja v. State Page 12 the penetration of the sexual organ of a child under the age of 14 by the actor’s finger.”
Appellant maintains that when the trial court specifically referred to penetration by
Appellant’s finger in the abstract portion of the jury charge, it commented on the evidence
and caused him egregious harm.
The application paragraph of the jury charge is the part of the charge that
authorizes a conviction, not the abstract portion of the charge. Hutch v. State, 922 S.W.2d
166, 172 (Tex. Crim. App. 1996). The abstract parts of the charge merely serve as a
glossary to aid the jury in their understanding and meaning of concepts and terms
contained in the application paragraph. Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim.
App. 2012) (citing Plata v. State, 926 S.W.2d 300, 302 (Tex.Crim.App.1996), overruled on
other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997). As a general
proposition, “reversible error occurs in the giving of an abstract instruction only when
the instruction is an incorrect or misleading statement of a law that the jury must
understand in order to implement the commands of the application paragraph.”
Crenshaw, 378 S.W.3d at 466.
As we have indicated, in the application portion of the jury charge as relates to this
issue, the trial court asked the jury to find whether Appellant intentionally and
knowingly caused the “penetration of the sexual organ of J.C., a child who was then and
there younger than 14 years of age, by his finger ...” “Where the application paragraph
Castilleja v. State Page 13 correctly instructs the jury, an error in the abstract instruction is not egregious.” Medina
v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999).
Even if we were to analyze Appellant’s complaint under Almanza, we would not
find that Appellant suffered egregious harm. We have outlined the appropriate test
above and see no need to repeat it here.
When we consider the charge itself, in its charge in the abstract, the trial court
limited the State to the manner and means that was charged in the indictment and that
was contained in the application paragraph. The statement in the abstract portion of the
charge did not contain “an incorrect or misleading statement of a law that the jury must
understand in order to implement the commands of the application paragraph.”
Crenshaw, 378 S.W.3d at 466. A consideration of this factor militates against a finding that
Appellant suffered egregious harm.
We have already discussed the state of the evidence in connection with
Appellant’s second issue on appeal. We need not repeat that evidence here. We do note
again, though, that the method of penetration was never a contested issue. Rather,
Appellant denied that abuse of any kind occurred. A consideration of this factor militates
against a finding that Appellant suffered egregious harm.
Appellant claims that because the State argued to the jury that Appellant
penetrated J.C.’s vagina with his finger, that somehow shows that he suffered egregious
harm. The State was entirely within its right to make that argument—that is the basis of
Castilleja v. State Page 14 its accusation against Appellant. This factor does not weigh in favor of a finding that
As with Appellant’s second issue on appeal, he asserts that the jury must have
reached a compromise verdict. For the reasons stated in our discussion of the second
issue on appeal, we do not believe that weighs in favor of a finding that Appellant
suffered egregious harm. Finally, we have searched the record and have found nothing
to support a finding that Appellant suffered egregious harm.
Even if we were to hold, which we do not, that the trial court erroneously
commented on the evidence when it charged the jury in the abstract, Appellant did not
suffer egregious harm therefrom. We overrule Appellant’s third issue on appeal.
We affirm the judgment of the trial court.
JIM R. WRIGHT Senior Chief Justice
Before Chief Justice Gray, Justice Johnson, and Justice Wright2 Affirmed Opinion delivered and filed August 4, 2021 Do not publish [CRPM]
2The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003.
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