COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-11-00141-CR
ANTONIO CENTENO MONCADA APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
In two points, Appellant Antonio Centeno Moncada appeals his convictions
for continuous sexual abuse of a child under age fourteen, aggravated sexual
assault of a child under age fourteen, and two counts of indecency with a child by
contact. We will affirm as modified.
J.M. was born on August 16, 1995. He was about five or six years old
when his mother began a serious relationship with Moncada.2 Moncada later 1 See Tex. R. App. P. 47.4. began sexually abusing ten- or eleven-year-old J.M. while the family was living
with Moncada’s brother. Moncada touched J.M.’s penis, put his mouth on J.M.’s
penis, and caused J.M.’s hand to touch Moncada’s penis about twenty-four or
twenty-five times per month, usually at nighttime.
Moncada’s conduct continued soon after the family moved to an apartment
complex, where they lived for about a year. According to J.M., Moncada
masturbated J.M. about three or four times a week and put his mouth on J.M.’s
penis about once or twice a week.
J.M. was about twelve years old when he and the rest of the family moved
to a mobile home in Haltom City, where Moncada continued to engage in the
same conduct with J.M. between four and six times per week. On August 8,
2009—eight days before J.M.’s fourteenth birthday—J.M.’s mother discovered
J.M. and Moncada in a vacant trailer in the middle of the night; Moncada was
naked, J.M. had his pants below his knees, a pornographic movie was playing on
a portable DVD player, and a small jar of lotion was nearby. Moncada denied
“doing anything,” but J.M.’s mother called the police and reported Moncada, who
was eventually arrested and admitted to investigators that he had masturbated
J.M. and had performed oral sex on him on two occasions. The jury assessed
Moncada’s punishment at fifty years’ confinement for the continuous-sexual-
abuse offense, ninety-nine years’ confinement for the aggravated-sexual-assault
2 J.M.’s mother has two children with Moncada.
2 offense, and twenty years’ confinement for each of the indecency offenses. The
trial court sentenced Moncada accordingly, ordering that the conviction for
continuous sexual abuse be served concurrently with the convictions for
aggravated sexual assault and indecency with a child, which were ordered to be
served consecutively.
In his first point, Moncada argues that the trial court erred by overruling his
objection that the jury charge violated several of his state and federal
constitutional rights because the continuous-sexual-abuse offense was based on
the same conduct as the aggravated-sexual-assault and indecency offenses. He
specifies that the problem with the charge is that the jury instruction “did not cure
the fact that during the State’s case in chief the jury was allowed to consider
alleged acts of conduct that occurred prior to the effective date of the Continuous
Sexual Abuse statute - acts which constituted the elements of counts two, three
and four.” [Emphasis added.]
In our review of a jury charge, we first determine whether error occurred; if
error did not occur, our analysis ends. See Abdnor v. State, 871 S.W.2d 726,
731–32 (Tex. Crim. App. 1994); see also Sakil v. State, 287 S.W.3d 23, 25–26
(Tex. Crim. App. 2009).
A person commits 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
3 (2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age.
Tex. Penal Code Ann. § 21.02(b) (West Supp. 2011). This statute applies only to
conduct occurring on or after September 1, 2007. See Act of May 18, 2007, 80th
Leg., R.S., ch. 593, § 1.17, 2007 Tex. Gen. Laws 1120, 1127. An “act of sexual
abuse” includes indecency with a child under penal code section 21.11(a)(1) and
aggravated sexual assault under penal code section 22.021. Id. § 21.02(c)(2),
(4); see id. §§ 21.11(a)(1) (West 2011), 22.021 (West Supp. 2011). But “[a]
defendant may not be convicted in the same criminal action of an offense listed
under Subsection (c) the victim of which is the same victim as a victim of the
offense alleged under Subsection (b) unless the offense listed in Subsection (c)”
“occurred outside the period in which the offense alleged under Subsection (b)
was committed.” Id. § 21.02(e)(2).
Again, Moncada contends that the jury relied on the same pre-
September 1, 2007 conduct for the conviction of continuous sexual abuse and
each respective conviction in the remaining counts. However, the trial court
instructed the jurors in the jury charge that to find Moncada guilty of continuous
sexual abuse, they had to unanimously agree that during a period of thirty or
more days, on or about August 8, 2009, he committed two or more acts of sexual
abuse. The trial court further instructed the jury not to consider any testimony
regarding any act of sexual abuse alleged to have occurred before September 1,
2007, the effective date of the continuous-sexual-abuse statute. In its closing
4 argument, the State also told the jury that they all had to believe that two acts
occurred between September 1, 2007, and August 8, 2009. Accordingly, we hold
that the trial court did not err by overruling Moncada’s objection to the jury charge
as it pertained to the continuous-sexual-abuse count, and we overrule his first
point.
In his second point, Moncada argues that a variance exists between the
trial court’s oral pronouncement of his sentences and the sentences contained in
the written judgments. He contends—and the State agrees—that the judgments
should be modified to reflect the sentences pronounced by the trial court at the
conclusion of his trial.
A trial court’s pronouncement of sentence is oral, while the judgment,
including the sentence assessed, is merely the written declaration and
embodiment of that oral pronouncement. Tex. Code Crim. Proc. Ann. art. 42.01,
§ 1 (West Supp. 2011); see Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim.
App. 2004). When the oral pronouncement of sentence and the written judgment
vary, the oral pronouncement controls. Taylor, 131 S.W.3d at 500.
The trial court stated the following during its oral pronouncement of
Moncada’s sentences: “Counts, Two, Three and Four shall . . . be served
consecutively . . . . Count One shall run concurrently with Counts Two, Three
and Four.” However, the written judgments for counts two (aggravated sexual
assault), three (indecency), and four (indecency) provide that the sentences shall
run “consecutive to count one [and] concurrent with” counts two, three, and four,
5 depending on the judgment.
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-11-00141-CR
ANTONIO CENTENO MONCADA APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
In two points, Appellant Antonio Centeno Moncada appeals his convictions
for continuous sexual abuse of a child under age fourteen, aggravated sexual
assault of a child under age fourteen, and two counts of indecency with a child by
contact. We will affirm as modified.
J.M. was born on August 16, 1995. He was about five or six years old
when his mother began a serious relationship with Moncada.2 Moncada later 1 See Tex. R. App. P. 47.4. began sexually abusing ten- or eleven-year-old J.M. while the family was living
with Moncada’s brother. Moncada touched J.M.’s penis, put his mouth on J.M.’s
penis, and caused J.M.’s hand to touch Moncada’s penis about twenty-four or
twenty-five times per month, usually at nighttime.
Moncada’s conduct continued soon after the family moved to an apartment
complex, where they lived for about a year. According to J.M., Moncada
masturbated J.M. about three or four times a week and put his mouth on J.M.’s
penis about once or twice a week.
J.M. was about twelve years old when he and the rest of the family moved
to a mobile home in Haltom City, where Moncada continued to engage in the
same conduct with J.M. between four and six times per week. On August 8,
2009—eight days before J.M.’s fourteenth birthday—J.M.’s mother discovered
J.M. and Moncada in a vacant trailer in the middle of the night; Moncada was
naked, J.M. had his pants below his knees, a pornographic movie was playing on
a portable DVD player, and a small jar of lotion was nearby. Moncada denied
“doing anything,” but J.M.’s mother called the police and reported Moncada, who
was eventually arrested and admitted to investigators that he had masturbated
J.M. and had performed oral sex on him on two occasions. The jury assessed
Moncada’s punishment at fifty years’ confinement for the continuous-sexual-
abuse offense, ninety-nine years’ confinement for the aggravated-sexual-assault
2 J.M.’s mother has two children with Moncada.
2 offense, and twenty years’ confinement for each of the indecency offenses. The
trial court sentenced Moncada accordingly, ordering that the conviction for
continuous sexual abuse be served concurrently with the convictions for
aggravated sexual assault and indecency with a child, which were ordered to be
served consecutively.
In his first point, Moncada argues that the trial court erred by overruling his
objection that the jury charge violated several of his state and federal
constitutional rights because the continuous-sexual-abuse offense was based on
the same conduct as the aggravated-sexual-assault and indecency offenses. He
specifies that the problem with the charge is that the jury instruction “did not cure
the fact that during the State’s case in chief the jury was allowed to consider
alleged acts of conduct that occurred prior to the effective date of the Continuous
Sexual Abuse statute - acts which constituted the elements of counts two, three
and four.” [Emphasis added.]
In our review of a jury charge, we first determine whether error occurred; if
error did not occur, our analysis ends. See Abdnor v. State, 871 S.W.2d 726,
731–32 (Tex. Crim. App. 1994); see also Sakil v. State, 287 S.W.3d 23, 25–26
(Tex. Crim. App. 2009).
A person commits 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
3 (2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age.
Tex. Penal Code Ann. § 21.02(b) (West Supp. 2011). This statute applies only to
conduct occurring on or after September 1, 2007. See Act of May 18, 2007, 80th
Leg., R.S., ch. 593, § 1.17, 2007 Tex. Gen. Laws 1120, 1127. An “act of sexual
abuse” includes indecency with a child under penal code section 21.11(a)(1) and
aggravated sexual assault under penal code section 22.021. Id. § 21.02(c)(2),
(4); see id. §§ 21.11(a)(1) (West 2011), 22.021 (West Supp. 2011). But “[a]
defendant may not be convicted in the same criminal action of an offense listed
under Subsection (c) the victim of which is the same victim as a victim of the
offense alleged under Subsection (b) unless the offense listed in Subsection (c)”
“occurred outside the period in which the offense alleged under Subsection (b)
was committed.” Id. § 21.02(e)(2).
Again, Moncada contends that the jury relied on the same pre-
September 1, 2007 conduct for the conviction of continuous sexual abuse and
each respective conviction in the remaining counts. However, the trial court
instructed the jurors in the jury charge that to find Moncada guilty of continuous
sexual abuse, they had to unanimously agree that during a period of thirty or
more days, on or about August 8, 2009, he committed two or more acts of sexual
abuse. The trial court further instructed the jury not to consider any testimony
regarding any act of sexual abuse alleged to have occurred before September 1,
2007, the effective date of the continuous-sexual-abuse statute. In its closing
4 argument, the State also told the jury that they all had to believe that two acts
occurred between September 1, 2007, and August 8, 2009. Accordingly, we hold
that the trial court did not err by overruling Moncada’s objection to the jury charge
as it pertained to the continuous-sexual-abuse count, and we overrule his first
point.
In his second point, Moncada argues that a variance exists between the
trial court’s oral pronouncement of his sentences and the sentences contained in
the written judgments. He contends—and the State agrees—that the judgments
should be modified to reflect the sentences pronounced by the trial court at the
conclusion of his trial.
A trial court’s pronouncement of sentence is oral, while the judgment,
including the sentence assessed, is merely the written declaration and
embodiment of that oral pronouncement. Tex. Code Crim. Proc. Ann. art. 42.01,
§ 1 (West Supp. 2011); see Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim.
App. 2004). When the oral pronouncement of sentence and the written judgment
vary, the oral pronouncement controls. Taylor, 131 S.W.3d at 500.
The trial court stated the following during its oral pronouncement of
Moncada’s sentences: “Counts, Two, Three and Four shall . . . be served
consecutively . . . . Count One shall run concurrently with Counts Two, Three
and Four.” However, the written judgments for counts two (aggravated sexual
assault), three (indecency), and four (indecency) provide that the sentences shall
run “consecutive to count one [and] concurrent with” counts two, three, and four,
5 depending on the judgment. The written judgments do not accurately reflect the
trial court’s oral pronouncements of Moncada’s sentences. We sustain
Moncada’s second point and will modify the judgments.
We modify the judgment in count one to reflect that Moncada’s fifty-year
sentence for his conviction for continuous sexual abuse runs concurrently with
the ninety-nine year sentence for the aggravated-sexual-assault conviction in
count two, the twenty-year sentence for the indecency-with-a-child-conviction in
count three, and the twenty-year sentence for the indecency-with-a-child-
conviction in count four. We modify the judgments in counts two, three, and four
to reflect that Moncada’s sentences for those three convictions run consecutively
to one another and concurrently with his fifty-year sentence for continuous sexual
abuse. We affirm the trial court’s judgments as modified.
BILL MEIER JUSTICE
PANEL: GARDNER, WALKER, and MEIER, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: May 10, 2012