In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-22-00156-CR ___________________________
JOSE GONZALEZCASTILLO, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 485th District Court Tarrant County, Texas Trial Court No. 1590792R
Before Birdwell, Womack, and Wallach, JJ. Memorandum Opinion by Justice Birdwell MEMORANDUM OPINION
Appellant Jose GonzalezCastillo appeals his conviction for continuous sexual
abuse of a child under the age of fourteen. See Tex. Penal Code Ann. § 21.02(b). In his
sole issue on appeal, Appellant argues that the evidence is insufficient to support his
conviction. Because we hold that sufficient evidence supports Appellant’s conviction,
we affirm.
I. Background
The complainant in this case, Irena, was approximately eighteen months old
when Appellant began dating her mother (Mother). 1 Appellant and Mother eventually
married, and Appellant helped Mother take care of Irena. Irena and Appellant had a
close relationship, and she would refer to him as “Dad” or “Tonio,” which was short
for Appellant’s middle name, Antonio. According to Irena, Appellant began sexually
abusing her when she was four years old, which continued until Mother accidentally
discovered the abuse in 2018.
A. The April 27, 2018 Incident
On April 27, 2018, when Irena was seven years old, Appellant picked Irena up
from school and took her home. Irena lived at the home with Mother, Mother’s three-
month-old baby, and Appellant, as well as Appellant’s sister (Aunt), her husband, and
their two children. After Appellant and Irena arrived at home, Mother stepped into
1 We use aliases to protect the identity of the complainant. See Tex. R. App. P. 9.8 cmt., 9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
2 the shower, which was in the bathroom of the master bedroom. While Mother was in
the shower, Appellant started touching Irena inappropriately in the master bedroom.
Mother called out to Irena from the shower, but Irena did not respond. Mother had a
“gut feeling” that she needed to go check on Irena, so she stepped out of the shower
without turning the water off. When Mother walked into the bedroom, she saw that
Irena’s shorts and underwear were down and that Appellant was next to her on the
bed. Irena immediately pulled her shorts up with what Mother described as a weird,
frozen look on her face. Mother asked Irena what had happened, and Irena responded
that Appellant had “licked her burrito,” indicating her vagina. When Mother
confronted Appellant, he began hitting himself and the walls and calling himself a
pendejo (a Spanish word meaning “idiot”). Aunt then came into the bedroom and asked
what was going on, and she also confronted Appellant after Irena told her what had
happened. Appellant did not deny Irena’s description of what had happened.
Soon after the confrontation, Appellant left the home. Mother called the police
and was instructed to take Irena to the children’s hospital for an examination. There,
Sexual Assault Nurse Examiner (SANE) Stacey Henley examined a “nervous” and
“scared” Irena. Irena told Henley, “My dad was licking my middle part, and then my
mom saw, and then they f[ou]ght and they sa[id] a lot of bad words.” When Henley
asked Irena to clarify who she meant by “dad,” Irena said it was “Tonio.” Henley also
clarified that when Irena referred to her “middle part,” she was identifying her vagina.
Henley collected Irena’s clothing and swab specimens from Irena’s outer labia, inner
3 labia, and perineum. That night, forensic examiner Trista Burden of Alliance for
Children also interviewed Irena. When asked by both Henley and Burden whether
anything had happened before that day, Irena responded that it had never happened
before.
The next day, Appellant was interviewed by Sergeant Charles Cisneros with the
Arlington Police Department. Although Appellant initially denied any sexual abuse, he
eventually admitted that he had placed his tongue on Irena’s vagina and said that it
had only happened on that single occasion. Appellant’s clothing and a buccal swab
from Appellant were sent for lab testing along with the samples collected from Irena;
the testing later confirmed the presence of male DNA on Irena’s outer labia from
which Appellant or a close male relative of Appellant could not be excluded.
B. Other Incidents Eventually Disclosed by Irena
Following the April 27, 2018 incident, Mother and Irena moved out of the
home that they shared with Appellant and his family. While this was hard on Irena,
she described the move as “a new beginning.” After Irena began attending therapy,
she told Mother that the April 27, 2018 incident was not the first time that “that had
happened.” Mother then took Irena back to Alliance for Children to be interviewed a
second time by forensic examiner Burden. During this interview, Irena indicated that
she had been sexually abused by Appellant more than one time and that it had
occurred many times while Mother was at work and while “the baby was in [Mother’s]
4 stomach.” 2 However, she also deflected many of Burden’s questions and described
the abuse in the “generic way that it would happen,” or by “script memory.” For
example, Irena explained to Burden that the sexual abuse would always happen on the
bed in Mother’s room and that Aunt, Aunt’s husband, and Irena’s cousins would be in
another room of the home while it happened. She also described that Appellant
would always remove her clothing and place her on her back on the bed and that the
door would be shut with the lights turned on.
At trial, Burden testified that, in cases of accidental discovery of child sexual
abuse, as here, it is common for the child to initially deny that any abuse had
happened or to admit to only the single incident that led to the initial disclosure.
Sergeant Cisneros testified that, based on his training and experience, it is common in
accidental-discovery cases that subsequent disclosures will reveal the additional
instances of sexual abuse—or even chronic abuse—because the initial outcry was not
on the child’s terms.
C. Irena’s Testimony
Irena was eleven years old by the time she testified at Appellant’s trial.
Although she was nervous and did not like talking about the abuse because it made
her “go[] back” to it, Irena testified that Appellant had done something
“inappropriate” to her more than ten times and that it had happened so many times
Mother testified that the baby’s birthdate was in January 2018, which was 2
when Mother stopped working.
5 that it was difficult for her to remember them as separate incidents. She stated that the
first incident occurred just after the family moved into their home in Arlington; she
was “four, almost five” years old.3 Another incident involving Appellant’s touching
her with his tongue occurred when her little sister had not been born yet. When asked
about the times that Appellant had touched her, Irena stated that Appellant would
usually touch her when Mother was at work. Aunt was usually at home either in her
room or in the kitchen.
Irena testified that when Appellant “did something inappropriate,” he would
touch her “middle part” with his hand or his tongue. She explained that by “middle
part,” she meant the part of her body used for peeing. Appellant would also kiss Irena
on the mouth in a way that made her feel uncomfortable and would make her watch
pornographic videos that showed men’s and women’s “middle parts.” At other times,
Appellant would use his “middle part” to touch her mouth. By Appellant’s “middle
part,” she meant the part of the body that boys use to go to the bathroom. Irena
explained that, other than Appellant’s “middle part,” she had seen a boy’s private part
only when her cousins would shower or when one of her baby cousins was having his
diaper changed.
3 For reference, Mother testified that they moved into the Arlington home in approximately April 2016.
6 As for the sexual abuse, Appellant would threaten Irena by telling her that
police officers kill people who do the things that he had been doing to her, and what
“four, five, six, seven-year-old would want” that to happen.
D. Appellant’s Guilty Plea and Trial
Appellant was charged with continuous sexual abuse of a child under the age of
fourteen (Count 1), two counts of aggravated sexual assault of a child (Counts 2 and
3), and indecency with a child by contact (Count 4). At trial, Appellant pled guilty to
only Count 3, which alleged that he had caused his mouth to contact the sexual organ
of Irena on April 27, 2018. Upon the jury’s finding of an additional act that had
occurred more than thirty days apart from the April 27, 2018 act, the jury found
Appellant guilty of Count 1—continuous sexual abuse. The trial court entered
judgment on the verdict and sentenced Appellant to 30 years’ confinement.
II. Discussion
Appellant contends that the evidence is insufficient to support his conviction
for continuous sexual abuse as alleged in Count 1 because (1) although the evidence
supports his guilt on Count 3, the record does not show a second act of sexual abuse,
which the State was required to prove to obtain a conviction for continuous sexual
abuse, and (2) even if the record does show a second act of sexual abuse, the second
act was not clearly more than thirty days removed from the act of sexual abuse in
Count 3.
7 The State responds that the evidence shows that Appellant sexually abused
Irena repeatedly over the course of several years, including several acts involving
Appellant’s touching her sexual organ with his mouth or causing his sexual organ to
touch her mouth. At a minimum, the evidence shows that the sexual abuse occurred
not less than twice—once before the January 2018 date when Mother gave birth to
Irena’s little sister and stopped working, and once on April 27, 2018, which are acts of
abuse more than thirty days apart.
A. Standard of Review
In our evidentiary-sufficiency review, we view all the evidence in the light most
favorable to the verdict to determine whether any rational factfinder could have found
the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex.
Crim. App. 2017). This standard gives full play to the factfinder’s responsibility to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at
2789; Harrell v. State, 620 S.W.3d 910, 914 (Tex. Crim. App. 2021).
The factfinder alone judges the evidence’s weight and credibility. See Tex. Code
Crim. Proc. Ann. art. 38.04; Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App.
2021). We may not re-evaluate the evidence’s weight and credibility and substitute our
judgment for the factfinder’s. Queeman, 520 S.W.3d at 622. Instead, we determine
whether the necessary inferences are reasonable based on the evidence’s cumulative
8 force when viewed in the light most favorable to the verdict. Braughton v. State, 569
S.W.3d 592, 608 (Tex. Crim. App. 2018); see Villa v. State, 514 S.W.3d 227, 232 (Tex.
Crim. App. 2017) (“The court conducting a sufficiency review must not engage in a
‘divide and conquer’ strategy but must consider the cumulative force of all the
evidence.”). We must presume that the factfinder resolved any conflicting inferences
in favor of the verdict, and we must defer to that resolution. Braughton, 569 S.W.3d at
608.
B. Applicable Law
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”; (2) the person is seventeen years of age or older when committing each act of
sexual abuse; and (3) the victim is a child younger than fourteen years of age. Tex.
Penal Code Ann. § 21.02. For purposes of this statute, “acts of sexual abuse” include
sexual assault under Penal Code Section 22.011; aggravated sexual assault under Penal
Code Section 22.021; and indecency with a child under Penal Code Section
21.11(a)(1). Id. Acts of sexual abuse therefore include intentionally or knowingly
“caus[ing] the penetration of the anus or sexual organ of a child by any means,” id.
§ 22.011(2)(A); intentionally or knowingly “caus[ing] the sexual organ of a child to
contact or penetrate the mouth, anus, or sexual organ of another person, including the
[person],” id. § 22.021(B)(iii); and touching any part of the child’s genitals if
committed with the intent to arouse or gratify the sexual desire of any person, id.
9 § 21.11(c)(1). “The testimony of a child sexual abuse victim, alone, can be sufficient to
support a conviction for continuous sexual abuse of a child.” Brockman v. State, No.
02-18-00327-CR, 2019 WL 4048872, at *1 (Tex. App.—Fort Worth Aug. 28, 2019,
pet. ref’d) (mem. op., not designated for publication) (citing Tex. Code Crim. Proc.
Ann. art. 38.07).
“Although the exact dates of the acts of sexual abuse need not be proven, the
offense of continuous sexual abuse of a child requires proof that one act of sexual
abuse occurred on at least the 29th day after the day of another act of sexual abuse.”
Lawson v. State, No. 02-17-00201-CR, 2018 WL 1192478, at *4 (Tex. App.—Fort
Worth Mar. 8, 2018, no pet.) (per curiam) (mem. op., not designated for publication).
The jury, however, is “not required to agree unanimously on which specific acts of
sexual abuse were committed by the defendant or the exact date when those acts were
committed.” Id.
In cases of continuous sexual abuse, the trier of fact is entitled to “fit[] the
pieces of the jigsaw puzzle together and weigh[] the credibility of each piece.” Flowers
v. State, 220 S.W.3d 919, 923 (Tex. Crim. App. 2007); see Minnis v. State, No. 02-20-
00027-CR, 2021 WL 62127, at *6 (Tex. App.—Fort Worth Jan. 7, 2021, no pet.)
(mem. op., not designated for publication). For example, the jury may piece together
the timeframe of the abuse from testimony concerning a child’s likely milestones, such
as school years, the child’s age, seasons, and places where the child lived. See, e.g.,
Hernandez v. State, No. 05-17-00560-CR, 2018 WL 2316026, at *4 (Tex. App.—Dallas
10 May 22, 2018, pet. ref’d) (mem. op., not designated for publication) (“While the girls
were unable to provide specific dates for when the abuse occurred, they referred to
the sexual abuse occurring at different houses[,] and their mother was able to provide
a timeline of when they resided at those houses.”); Lawson, 2018 WL 1192478, at *5
(relying on testimony associating the abuse with school years, seasons, and holidays to
hold the evidence sufficient despite lack of specific dates); Michell v. State, 381 S.W.3d
554, 561–64 (Tex. App.—Eastland 2012, no pet.) (upholding continuous sexual abuse
conviction based on proof tying the abuse to different school years, holidays, seasons,
and homes that the child complainant lived in over time).
C. Analysis
The jury had sufficient evidence from which it could piece together a timeline
sufficient to show that Appellant committed at least two acts of sexual abuse more
than thirty days apart. See Flowers, 220 S.W.3d at 923; Ruiz v. State, Nos. 02-22-00107-
CR, 02-22-00108-CR, 2023 WL 4007427, at *3 (Tex. App.—Fort Worth June 15,
2023, no pet. h.) (mem. op., not designated for publication).
Irena testified that Appellant sexually abused her at least ten times beginning
when she was four years old and that it happened at least once when Mother was
pregnant and still working. Appellant asserts that Irena’s testimony is “inconclusive”
because, other than the April 27, 2018 incident during which he touched her vagina
with his mouth, the “other contacts” she described involved his touching her with
both his hand and his tongue, kissing her on the lips, and causing his penis to touch
11 her mouth. Appellant contends that the jury could only “speculat[e]” about these
other incidents and that the record is unclear about the timing of the alleged second
act that occurred while Mother was pregnant and still working, particularly when the
indictment alleged that the continuous offense occurred from January 1, 2018, to
April 27, 2018.
Appellant’s contentions are wrong for several reasons. First, “[t]he primary
purpose for specifying a date in an indictment is to show that the prosecution is not
barred by a statute of limitations.” Baez v. State, 486 S.W.3d 592, 595 (Tex. App.—San
Antonio 2015, pet. ref’d) (citing Garcia v. State, 981 S.W.2d 683, 686 (Tex. Crim. App.
1998)). But because continuous sexual abuse has no period of limitations, the State is
not bound by that date. See Tex. Code Crim. Proc. Ann. art. 12.01(1)(D). Rather, the
jury may rationally infer that the date range element has been met even if the sexual-
abuse evidence exceeds the scope of the indictment. See Fernandez v. State, No. 01-21-
00541-CR, 2023 WL 3742350, at *7 (Tex. App.—Houston [1st Dist.] June 1, 2023, no
pet. h.) (mem. op., not designated for publication) (stating that in a continuous sexual
abuse case, “[i]f evidentiary facts regarding the alleged abuse exceed the date range in the
indictment, that testimony can be considered to show the continuous nature of the
abuse” (quoting Moreno v. State, 619 S.W.3d 754, 759–60 (Tex. App.—San Antonio 2020,
no pet.))); Kuhn v. State, 393 S.W.3d 519, 525–29 (Tex. App.—Austin 2013, pet. ref’d).
Second, Irena was not required to provide specific dates of when the sexual
abuse occurred. See Tex. Penal Code Ann. § 21.02(d); Dixon v. State, 201 S.W.3d 731,
12 736 (Tex. Crim. App. 2006) (“Especially where young children are involved, . . . courts
cannot impose unrealistic expectations regarding proof of when an offense actually
occurred[.]”). Indeed, the Court of Criminal Appeals has noted that the Legislature
created the offense of continuous sexual abuse to “adapt [the Penal Code] to the
common factual scenario of an ongoing crime involving an abusive sexual relationship
of a child.” Price v. State, 434 S.W.3d 601, 607 (Tex. Crim. App. 2014) (quoting Dixon,
201 S.W.3d at 737 (Cochran, J., concurring)); see Baez, 486 S.W.3d at 595 (“The Texas
Legislature ‘created the offense of continuous sexual abuse of a child in response to a
need to address sexual assaults against young children who are normally unable to
identify the exact dates of the offenses when there are ongoing acts of sexual abuse.’”
(quoting Michell, 381 S.W.3d at 561)).
Lastly, because “[c]ourts give wide latitude to testimony given by a child victim
of sexual abuse,” Irena was not required to provide a precise description of what
happened to her. See Mannie v. State, No. 02-08-224-CR, 2009 WL 2196135, at *1 (Tex.
App.—Fort Worth July 23, 2009, no pet.) (per curiam) (mem. op., not designated for
publication) (citing Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990)). Nor
was she “expected to testify at the same level of sophistication as an adult.” See id.
(citing Villalon, 791 S.W.2d at 134).
Irena testified that the sexual abuse happened so many times that she could not
remember each separate event. But she remembered enough of the sexual abuse to
testify that Appellant, on at least ten occasions, touched her “middle part”—her
13 vagina—with his mouth and caused her mouth to touch his “middle part”—his penis.
She also provided references through her testimony to the timeframe during which
the sexual abuse occurred. See Ruiz, 2023 WL 4007427, at *5; cf. Clark v. State, No. 02-
19-00131-CR, 2020 WL 5949925, at *4 (Tex. App.—Fort Worth Oct. 8, 2020, no
pet.) (mem. op., not designated for publication) (reversing conviction when child’s
testimony did not provide “any guideposts for when the abuse occurred that would
allow [the court] to conclude, without speculating, that the first and last instances of
abuse [had] occurred at least thirty days apart”). Specifically, Irena testified that the
sexual abuse began just after moving into the home in Arlington, that she was four
years old when it started, that Appellant had told her that the police would kill him for
doing those things to her when she was a “four, five, six, seven-year old,” that the
sexual abuse would always occur in Mother’s bedroom in the Arlington home, that
the sexual abuse would always occur when Mother was at work, and that at least one
act had occurred while Mother was pregnant and still working.
If the jury accepted Irena’s testimony, as it apparently did, then it could have
found from the evidence that she had described at least two acts of abuse that occurred
more than thirty days apart—at a minimum, the act on April 27, 2018, and at least one
act before Mother gave birth and stopped working in January 2018. Viewing all the
evidence in the light most favorable to the verdict, we conclude that a rational jury
could have found beyond a reasonable doubt that Appellant had committed at least two
acts of sexual abuse thirty days or more apart. See Queeman, 520 S.W.3d at 622; Ruiz,
14 2023 WL 4007427, at *5; see also Brown v. State, No. 05-19-00597-CR, 2020 WL 4034964,
at *6 (Tex. App.—Dallas July 17, 2020, no pet.) (mem. op., not designated for
publication) (holding that complainant’s testimony that she was in fourth grade when
one act of sexual abuse occurred and was in fifth grade when another occurred was
evidence that the jury could consider in finding that the acts were thirty days or more
apart); Machado v. State, No. 02-15-00365-CR, 2016 WL 3962731, at *3 (Tex. App.—
Fort Worth July 21, 2016, pet. ref’d) (mem. op., not designated for publication) (“[T]he
record contains evidentiary puzzle pieces that the jury could have carefully fit together
to rationally find beyond a reasonable doubt that appellant’s sexual abuse of [the
complainant] occurred over a period of thirty days or more.”). Accordingly, we overrule
Appellant’s sole issue.
III. Conclusion
Having overruled Appellant’s sole issue on appeal, we affirm the trial court’s
judgment of conviction.
/s/ Wade Birdwell Wade Birdwell Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: August 10, 2023