Lonnie H. Mansolo v. the State of Texas
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Opinion
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00453-CR
Lonnie H. Mansolo, Appellant
v.
The State of Texas, Appellee
FROM THE 22ND DISTRICT COURT OF COMAL COUNTY NO. CR2023-241A, THE HONORABLE R. BRUCE BOYER, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Lonnie Mansolo guilty of one count of continuous sexual
abuse of a young child and two counts of indecency with a child by sexual contact. See Tex.
Penal Code §§ 21.02(b), .11(a)(1). The jury assessed his punishment at life imprisonment for the
continuous-sexual-abuse count and twenty years’ confinement and a $10,000 fine for each
indecency count. The trial court sentenced Mansolo in accordance with the jury’s verdicts and
ordered that the sentences run concurrently. In five issues on appeal, Mansolo contends that he
was subjected to multiple punishments for the same offense in violation of the Double Jeopardy
Clause, that the evidence was insufficient to support the jury’s guilty verdicts, that the trial
court’s jury charge for the guilt-innocence phase of trial was erroneous, and that the State failed
to notify him of its outcry witness in advance of trial as required by article 38.072 of the Code of
Criminal Procedure. See Tex. Code Crim. Proc. art. 38.072(b)(1) (providing that outcry statement is not inadmissible hearsay if statement’s proponent provides adequate notice to
adverse party). We affirm the trial court’s judgments of conviction.
BACKGROUND
Count I alleged that Mansolo sexually abused his granddaughters 1—
Valerie Watson and Amanda Watson 2—from on or about October 6, 2013, through on or about
May 31, 2016, by sexually assaulting Valerie and by touching both girls’ genitals with his hand
or fingers. 3 Counts II and III alleged that he touched the breasts of Valerie and Amanda,
respectively, with the intent to arouse the sexual desire of any person.
The State’s witnesses included Valerie and Amanda; their mother (Mother); and
Taylor Hughes, a clinical social worker at their school. Mansolo presented testimony from his
wife, Valerie and Amanda’s grandmother (Grandmother).
Hughes testified about Amanda’s December 1, 2022 outcry, which initiated the
investigation leading to Mansolo’s indictment. Hughes received a text from the school nurse
informing her that Amanda, who was thirteen or fourteen years old at the time, was having an
“emotional crisis.” Amanda told Hughes that she was experiencing suicidal ideation and
disclosed a “sexual assault” that had occurred when she was “between five and seven years old”
and was living with her grandparents. According to Hughes, Amanda stated that her grandfather
1 Mansolo was not Amanda and Valerie’s biological grandfather but was married to their grandmother. 2 Because the girls were minors at the time of the offenses, we refer to them by pseudonyms in the interest of privacy. See Tex. R. App. P. 9.10(a)(3). 3 In October 2013, Valerie was six years old, and Amanda was five. 2 “would put her in the bath about every other day without her mother’s knowledge and touch her
breast and vaginal areas.” Amanda also stated that Valerie was present for the abuse.
Following Amanda’s outcry, Hughes called the police and Child Protective
Services. On cross-examination, Hughes testified that Amanda had been having issues at home
and had previously attempted suicide. Hughes also testified that trauma related to sexual abuse
can manifest through suicidal ideation.
Mother testified about Valerie and Amanda’s upbringing as well as an incident
involving their being treated for lice. When the girls were born, they lived with their parents in
an apartment in San Antonio. Valerie and Amanda would occasionally stay with Mansolo and
Grandmother at their house in the Indian Hills neighborhood of Comal County, including for at
least one week every summer. Mother’s understanding was that the girls bathed themselves
when visiting their grandparents.
In December 2014, the family moved into Mansolo and Grandmother’s house
before moving to a duplex in the same neighborhood around February 2015. In April or May of
2016, the family moved into a new house, which was a ten-minute drive from Mansolo and
Grandmother’s house. While living in both the duplex and the new house, the girls continued to
stay with their grandparents from time to time.
When Valerie and Amanda—around five and four, respectively—were living in
the San Antonio apartment, the girls got lice, for which they were treated by Mansolo and
Grandmother in the apartment’s bathroom; Mother was in another room. Grandmother was
combing the girls’ hair, and Mansolo was helping to rinse shampoo out of it. Amanda, who was
naked, began screaming and crying and claimed that Mansolo had “touched her where she pees”
and had been “rough with the rag.” He denied touching Amanda and said that he was “just
3 trying to hurry before they ran out of hot water.” Mother asked why he had been bathing
Amanda, who knew how to bathe herself, and testified that his “explanation at the time
made sense.”
Mother testified that following Amanda’s outcry in 2022, Amanda was taken to
the hospital and stayed there for several days. Mother added that Valerie outcried after Amanda.
Valerie, who was seventeen years old at the time of trial, testified that before
2014, she and Amanda visited their grandparents mostly during the summer for a few days to
two weeks. Valerie testified about two assaults that occurred at Mansolo and Grandmother’s
house when Valerie and Amanda were living in San Antonio; Valerie did not recall how old she
had been. On the first occasion, she was sitting on Mansolo’s lap on a couch in the dark. They
were talking and facing the TV, which was off. She felt him take off her pants, flip her upside
down, and lick her vagina. She testified that his tongue touched both the outside and inside of
her vagina.
A few months later, Valerie and Amanda were sleeping on an air mattress at the
foot of their grandparents’ bed, and Valerie awoke and climbed into the bed. Mansolo turned to
face her, grabbed her waist, and “kind of pinn[ed] her down.” She tried to break free, and he
rubbed his hand in a circle on her vagina—above her clothing—and touched her clitoris. Valerie
remembered seeing a green light on the bedroom’s air-conditioning unit.
In addition to the two assaults, Valerie testified that Mansolo consistently abused
her and Amanda over “a few years” when bathing them in the bathroom at his and
Grandmother’s house. The first bathing incident took place a “few weeks” before the assault on
the couch. He would touch Valerie with a rag or his hand while she was naked and “would focus
a lot” on her and Amanda’s breasts, butts, and vaginas. While touching Valerie’s vagina, he
4 would look at her and Amanda and move his hand in a circular motion. He bathed and touched
them “almost every time [they] came over,” and there were “multiple months” between
incidents. Although he did not touch Valerie’s vagina during every bath, the times he did so
sometimes “span[ned] over a period of months.”
Valerie testified that the bathing stopped when her family moved out of the
San Antonio apartment. She testified that she did not remember being treated for lice at the
apartment but that she did not remember much from her childhood.
Amanda, who was fifteen years old at the time of trial, similarly testified that
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00453-CR
Lonnie H. Mansolo, Appellant
v.
The State of Texas, Appellee
FROM THE 22ND DISTRICT COURT OF COMAL COUNTY NO. CR2023-241A, THE HONORABLE R. BRUCE BOYER, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Lonnie Mansolo guilty of one count of continuous sexual
abuse of a young child and two counts of indecency with a child by sexual contact. See Tex.
Penal Code §§ 21.02(b), .11(a)(1). The jury assessed his punishment at life imprisonment for the
continuous-sexual-abuse count and twenty years’ confinement and a $10,000 fine for each
indecency count. The trial court sentenced Mansolo in accordance with the jury’s verdicts and
ordered that the sentences run concurrently. In five issues on appeal, Mansolo contends that he
was subjected to multiple punishments for the same offense in violation of the Double Jeopardy
Clause, that the evidence was insufficient to support the jury’s guilty verdicts, that the trial
court’s jury charge for the guilt-innocence phase of trial was erroneous, and that the State failed
to notify him of its outcry witness in advance of trial as required by article 38.072 of the Code of
Criminal Procedure. See Tex. Code Crim. Proc. art. 38.072(b)(1) (providing that outcry statement is not inadmissible hearsay if statement’s proponent provides adequate notice to
adverse party). We affirm the trial court’s judgments of conviction.
BACKGROUND
Count I alleged that Mansolo sexually abused his granddaughters 1—
Valerie Watson and Amanda Watson 2—from on or about October 6, 2013, through on or about
May 31, 2016, by sexually assaulting Valerie and by touching both girls’ genitals with his hand
or fingers. 3 Counts II and III alleged that he touched the breasts of Valerie and Amanda,
respectively, with the intent to arouse the sexual desire of any person.
The State’s witnesses included Valerie and Amanda; their mother (Mother); and
Taylor Hughes, a clinical social worker at their school. Mansolo presented testimony from his
wife, Valerie and Amanda’s grandmother (Grandmother).
Hughes testified about Amanda’s December 1, 2022 outcry, which initiated the
investigation leading to Mansolo’s indictment. Hughes received a text from the school nurse
informing her that Amanda, who was thirteen or fourteen years old at the time, was having an
“emotional crisis.” Amanda told Hughes that she was experiencing suicidal ideation and
disclosed a “sexual assault” that had occurred when she was “between five and seven years old”
and was living with her grandparents. According to Hughes, Amanda stated that her grandfather
1 Mansolo was not Amanda and Valerie’s biological grandfather but was married to their grandmother. 2 Because the girls were minors at the time of the offenses, we refer to them by pseudonyms in the interest of privacy. See Tex. R. App. P. 9.10(a)(3). 3 In October 2013, Valerie was six years old, and Amanda was five. 2 “would put her in the bath about every other day without her mother’s knowledge and touch her
breast and vaginal areas.” Amanda also stated that Valerie was present for the abuse.
Following Amanda’s outcry, Hughes called the police and Child Protective
Services. On cross-examination, Hughes testified that Amanda had been having issues at home
and had previously attempted suicide. Hughes also testified that trauma related to sexual abuse
can manifest through suicidal ideation.
Mother testified about Valerie and Amanda’s upbringing as well as an incident
involving their being treated for lice. When the girls were born, they lived with their parents in
an apartment in San Antonio. Valerie and Amanda would occasionally stay with Mansolo and
Grandmother at their house in the Indian Hills neighborhood of Comal County, including for at
least one week every summer. Mother’s understanding was that the girls bathed themselves
when visiting their grandparents.
In December 2014, the family moved into Mansolo and Grandmother’s house
before moving to a duplex in the same neighborhood around February 2015. In April or May of
2016, the family moved into a new house, which was a ten-minute drive from Mansolo and
Grandmother’s house. While living in both the duplex and the new house, the girls continued to
stay with their grandparents from time to time.
When Valerie and Amanda—around five and four, respectively—were living in
the San Antonio apartment, the girls got lice, for which they were treated by Mansolo and
Grandmother in the apartment’s bathroom; Mother was in another room. Grandmother was
combing the girls’ hair, and Mansolo was helping to rinse shampoo out of it. Amanda, who was
naked, began screaming and crying and claimed that Mansolo had “touched her where she pees”
and had been “rough with the rag.” He denied touching Amanda and said that he was “just
3 trying to hurry before they ran out of hot water.” Mother asked why he had been bathing
Amanda, who knew how to bathe herself, and testified that his “explanation at the time
made sense.”
Mother testified that following Amanda’s outcry in 2022, Amanda was taken to
the hospital and stayed there for several days. Mother added that Valerie outcried after Amanda.
Valerie, who was seventeen years old at the time of trial, testified that before
2014, she and Amanda visited their grandparents mostly during the summer for a few days to
two weeks. Valerie testified about two assaults that occurred at Mansolo and Grandmother’s
house when Valerie and Amanda were living in San Antonio; Valerie did not recall how old she
had been. On the first occasion, she was sitting on Mansolo’s lap on a couch in the dark. They
were talking and facing the TV, which was off. She felt him take off her pants, flip her upside
down, and lick her vagina. She testified that his tongue touched both the outside and inside of
her vagina.
A few months later, Valerie and Amanda were sleeping on an air mattress at the
foot of their grandparents’ bed, and Valerie awoke and climbed into the bed. Mansolo turned to
face her, grabbed her waist, and “kind of pinn[ed] her down.” She tried to break free, and he
rubbed his hand in a circle on her vagina—above her clothing—and touched her clitoris. Valerie
remembered seeing a green light on the bedroom’s air-conditioning unit.
In addition to the two assaults, Valerie testified that Mansolo consistently abused
her and Amanda over “a few years” when bathing them in the bathroom at his and
Grandmother’s house. The first bathing incident took place a “few weeks” before the assault on
the couch. He would touch Valerie with a rag or his hand while she was naked and “would focus
a lot” on her and Amanda’s breasts, butts, and vaginas. While touching Valerie’s vagina, he
4 would look at her and Amanda and move his hand in a circular motion. He bathed and touched
them “almost every time [they] came over,” and there were “multiple months” between
incidents. Although he did not touch Valerie’s vagina during every bath, the times he did so
sometimes “span[ned] over a period of months.”
Valerie testified that the bathing stopped when her family moved out of the
San Antonio apartment. She testified that she did not remember being treated for lice at the
apartment but that she did not remember much from her childhood.
Amanda, who was fifteen years old at the time of trial, similarly testified that
Mansolo bathed her and Valerie at his and Grandmother’s house and touched Amanda’s breasts
and “lower part,” by which she meant her vagina, with his hand or a cloth. The touching, which
began when the girls lived in San Antonio, happened more than five times and “[m]ost of the
time [they] had to take a bath.” Occasionally, Grandmother would bathe the girls instead.
Although Amanda testified that she did not think the abuse lasted more than a month, she
explained that it began “when [she] was five” and “stopped happening when [they] moved into
his house.” She testified that she did not remember when her family moved out of the
San Antonio apartment but was “pretty sure” she was six at the time.
Amanda described one incident in which Mansolo, who was dressed, had the girls
stand next to each other outside of the bathtub. He first touched Valerie for around ten-to-fifteen
minutes and then touched Amanda. After touching them, he made them leave the bathroom,
locked the door, and remained in the bathroom “for a while.”
Like Valerie, Amanda testified that she did not remember having lice at the
San Antonio apartment. Amanda also testified that her outcry had been unplanned; while talking
to Hughes, Amanda “started talking about everything that was going on, and it just kind of fell
5 out.” After making the outcry, Amanda had gone to a treatment facility because she was having
suicidal thoughts.
Grandmother testified about the lice incident, Valerie and Amanda’s baths at
Mansolo and Grandmother’s house, and the girls’ sleeping arrangements while at the house.
Mother called Grandmother to assist with treating the girls for lice. Grandmother shampooed
and combed Amanda’s hair, and Mother did the same to Valerie’s hair. When Grandmother
finished, Mother asked Mansolo—who had been watching the treatment—to “take [Amanda] in
the shower” and rinse the shampoo out of her hair. After doing so, he began bathing Amanda
because “you don’t want to keep the lice shampoo all over her body.” While he was bathing
Amanda, she screamed, “Ow,” began crying, and told Grandmother that he had “hurt her down
there.” Mother and Grandmother spoke to Mansolo, who cried and told mother, “I will never
bathe these girls again.” Grandmother testified that after the incident, he refused even to go into
the bathroom while she was bathing the girls and “just totally stayed out.”
When Valerie and Amanda lived in San Antonio, they would stay at Mansolo and
Grandmother’s house for around a week each summer. Grandmother testified that Mansolo
would remain in the living room watching TV while she bathed the girls. She never left the girls
alone with him because “[t]hat was just her. That’s how [she] was . . . . It wasn’t that [she]
thought anything.” On cross-examination, however, she agreed that she had told police that she
was “not going to deny it; he did help with bathing.” She added, “I mean, but I was in there.”
She also agreed that when asked who bathed the girls, she told officers, “Sometimes I would[,]
and sometimes he would.”
When staying at Mansolo and Grandmother’s house, Valerie and Amanda slept on
an air mattress at the foot of their grandparents’ bed. The bedroom had a window
6 air-conditioning unit with a green light that stayed on as well as a floor fan that made noise. At
times, Grandmother and Amanda slept in the bed while Mansolo slept in the living room and
Valerie slept on the air mattress. At other times, when Grandmother, Valerie, and Mansolo were
watching TV in the living room, Grandmother would fall asleep on the couch or go to bed. She
testified that she would have known if Valerie had gotten into the bed because “she was a very
wild kicker.” Grandmother testified that she loved Mansolo but would not protect him if she
“had even one little inkling that he would” abuse the girls.
After hearing the evidence and the attorneys’ arguments, the jury found Mansolo
guilty of one count of continuous sexual abuse and two counts of indecency by sexual contact.
He filed a motion for new trial arguing only that the verdicts were contrary to the law and the
evidence and that the trial court had erred in overruling his motion for a directed verdict. The
motion for new trial was overruled by operation of law. This appeal followed.
DISCUSSION
I. Double Jeopardy
Mansolo’s first issue includes two distinct grounds, one constitutional and the
other statutory. He contends that his indecency convictions were subsumed by his conviction for
continuous sexual abuse in violation of the Double Jeopardy Clause. See U.S. Const. amend. V
(providing that “[n]o person shall be subject for the same offense to be twice put in jeopardy of
life or limb”); Benton v. Maryland, 395 U.S. 784, 787 (1969) (incorporating Double Jeopardy
Clause into Fourteenth Amendment’s Due Process Clause). He also contends that his indecency
convictions were prohibited by subsection 21.02(e) of the Penal Code because the indicted acts
occurred during the same time period as did the predicate offenses alleged in the
7 continuous-sexual-abuse charge, involved the same child-victim, and did not fall within one of
the three statutory exceptions. See Tex. Penal Code § 21.02(e) (prohibiting, in single criminal
action, dual convictions for continuous sexual abuse and listed offenses chargeable as “acts of
sexual abuse” when based on conduct against same child during same time period).
The State correctly responds that neither of Mansolo’s grounds was preserved for
appellate review. Preservation of error is a systemic requirement on appeal. Ford v. State,
305 S.W.3d 530, 532 (Tex. Crim. App. 2009) (citing Haley v. State, 173 S.W.3d 510, 515 (Tex.
Crim. App. 2005)). If an issue has not been preserved for appeal, we should not address the
merits of that issue. Id.
To preserve a complaint for appellate review, there must ordinarily be a timely,
specific objection and a ruling by the trial court. Tex. R. App. P. 33.1(a). “To be timely, a
complaint must be made as soon as the grounds for complaint [are] apparent or should be
apparent.” Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App. 1999). To be sufficiently
specific, an objection need not employ “hypertechnical or formalistic . . . words or phrases,”
Golliday v. State, 560 S.W.3d 664, 670 (Tex. Crim. App. 2018); “magic words,” Ford,
305 S.W.3d at 533; or a citation to a particular statute, Laws v. State, 640 S.W.3d 227, 229 (Tex.
Crim. App. 2022) (quoting Ford, 305 S.W.3d at 533). Rather, the objecting party must “let the
trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for
the judge to understand him at a time when the judge is in the proper position to do something
about it.” Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009); see Lankston v. State,
827 S.W.2d 907, 909 (Tex. Crim. App. 1992). “This gives the trial judge and the opposing
party an opportunity to correct the error.” Pena, 285 S.W.3d at 464 (citing Reyna v. State,
168 S.W.3d 173, 179 (Tex. Crim. App. 2005)).
8 A review of the record shows that Mansolo did not raise a double-jeopardy or
subsection 21.02(e) claim in a pretrial motion, at trial, or in his motion for new trial. 4 A
multiple-punishments double-jeopardy claim, such as the one raised by Mansolo, is among the
claims generally requiring a defendant to object at or before the time that the charge is submitted
to the jury. Gonzalez v. State, 8 S.W.3d 640, 643–46 (Tex. Crim. App. 2000). However,
double-jeopardy claims occupy a fairly unique position in the preservation landscape; the Court
of Criminal Appeals has held that such claims “may be raised for the first time on appeal when
(1) the undisputed facts show the double-jeopardy violation is clearly apparent from the face of
the record, and (2) enforcement of the usual rules of procedural default serves no legitimate state
interest.” Garfias v. State, 424 S.W.3d 54, 57–58 (Tex. Crim. App. 2014); see Langs v. State,
183 S.W.3d 680, 682 (Tex. Crim. App. 2006) (“[T]he face of the trial court record must clearly
show a double jeopardy violation before a defendant may successfully raise a ‘multiple
punishment’ double jeopardy claim for the first time on appeal.”). 5
4 Even if Mansolo’s subsection 21.02(e) claim had been preserved, it is without merit. As noted above, the subsection generally prohibits a defendant from being convicted in a single trial of both continuous sexual abuse and an offense listed in subsection (c) if the offenses were committed against the same victim. Tex. Penal Code § 21.02(e). Indecency by breast-touching, however, is expressly excluded from the offenses listed in subsection (c). Id. § 21.02(c). 5 In practice, this means that in order to determine whether a double-jeopardy claim may be raised for the first time on appeal, a court of appeals must address the claim’s merits:
Except where a jury is instructed on separate theories for an offense in the disjunctive, the clearly-apparent-from-the-record factor requires that we reach the merits of the claim before determining whether the claim is properly presented. Determining a threshold issue of procedure based on the claim’s merits results in an analytical hiccup: If there is a valid double-jeopardy violation, it is sufficiently clear on the face of the record; if there is no double-jeopardy violation, it is not.
Ex parte Marascio, 471 S.W.3d 832, 837 (Tex. Crim. App. 2015) (Keasler, J., concurring). 9 We must therefore determine whether a double-jeopardy violation is clearly
apparent from the face of the record in this case. In Garfias, the Court of Criminal Appeals
explained that the relevant inquiry in a multiple-punishments case is whether the Legislature
intended to authorize separate punishments under distinct statutes for the same conduct.
See 424 S.W.3d at 58. To answer the question, a reviewing court must conduct an “elements”
analysis, beginning with the Blockburger test, under which “two offenses are not the same if
‘each provision requires proof of a fact which the other does not.’” Philmon v. State,
609 S.W.3d 532, 535 (Tex. Crim. App. 2020) (quoting Bien v. State, 550 S.W.3d 180, 184 (Tex.
Crim. App. 2018)); Garfias, 424 S.W.3d at 58; see Blockburger v. United States, 284 U.S. 299,
304 (1932). In Texas, the Blockburger “same-elements” test is informed only by the pleadings,
and a reviewing “court may not consider the evidence presented at trial” to make the
determination. Philmon, 609 S.W.3d at 535–36.
Additional factors for determining legislative intent were set forth in a
non-exhaustive list by the court in Ervin v. State:
whether offenses are in the same statutory section; whether the offenses are phrased in the alternative; whether the offenses are named similarly; whether the offenses have common punishment ranges; whether the offenses have a common focus; whether the common focus tends to indicate a single instance of conduct; whether the elements that differ between the two offenses can be considered the same under an imputed theory of liability that would result in the offenses being considered the same under Blockburger; and whether there is legislative history containing an articulation of an intent to treat the offenses as the same or different for double-jeopardy purposes.
Bigon v. State, 252 S.W.3d 360, 371 (Tex. Crim. App. 2008) (citing Ervin v. State, 991 S.W.2d 804,
814 (Tex. Crim. App. 1999)). The “best indicator of legislative intent when determining whether
a multiple-punishments violation has occurred” is the “focus” or “gravamen” of the statutes in
10 question. Garfias, 424 S.W.3d at 59. A closely related factor “reviewing courts should consider
when making an ‘elements’ analysis is the determination of the allowable unit of prosecution for
the offenses in question.” Id.; see Hernandez v. State, 556 S.W.3d 308, 327 (Tex. Crim. App.
2017) (“Unless the legislature expressly defines an allowable unit of prosecution for a particular
criminal offense, the gravamen or gravamina of the offense best describe the allowable unit of
prosecution.”); Byrd v. State, 336 S.W.3d 242, 251 (Tex. Crim. App. 2011) (“The gravamen of
the offense normally dictates the number of allowable units of prosecution.”).
We recently performed an elements analysis for charges similar to those in this
case and concluded that continuous sexual abuse and indecency by breast-touching are not the
same offense for double-jeopardy purposes. See Ex parte Hernandez, --- S.W.3d ---, ----,
No. 03-25-00008-CR, 2026 WL 77267, at *5 (Tex. App.—Austin 2026, no pet. h.). First, the
offenses are codified in different sections of the Penal Code, are not similarly named, and carry
different punishment ranges. See Floyd v. State, 714 S.W.3d 9, 14 (Tex. Crim. App. 2024)
(“Different statutes are ‘some indication of legislative intent to authorize multiple prosecutions
simply because the offenses are separately defined in different statutes.’” (quoting Vick v. State,
991 S.W.2d 830, 832 (Tex. Crim. App. 1999))); Ervin, 991 S.W.2d at 814 (listing location of
statutes as factor for determining legislative intent); see also Tex. Penal Code §§ 21.02(h)
(providing that continuous sexual abuse “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”), .11(d) (providing that indecency by sexual contact is
second-degree felony punishable by imprisonment for two-to-twenty years).
Moreover, continuous sexual abuse and indecency by breast-touching require
proof of different facts. See Hernandez, 2026 WL 77267, at *5. Continuous sexual abuse of a
11 young child “requires evidence of at least two acts of sexual abuse, perpetrated over the
course of at least thirty days, against a child younger than 14 years of age.” Ramos v. State,
636 S.W.3d 646, 653 (Tex. Crim. App. 2021) (distinguishing continuous sexual abuse and
prohibited sexual conduct under Blockburger test). Indecency by breast-touching, conversely,
requires a single act, a child-victim younger than seventeen, and “the intent to arouse or gratify
the sexual desire of any person.” See Tex. Penal Code § 21.11(a)(1), (c). It also requires that the
defendant have touched the child-victim’s breast. Id. § 21.11(c)(1). Notably, although
indecency with a child by sexual contact may serve as a predicate offense for continuous sexual
abuse, indecency by breast-touching is explicitly excluded from the list of qualifying statutes.
See id. § 21.02(c)(2).
The offenses likewise have different focuses or gravamina that are not indicative
of a single instance of conduct. See Ervin, 991 S.W.2d at 814. The gravamen of continuous
sexual abuse is “‘not a particular instance of one of the offenses listed in Section 21.02(c)’ but
rather ‘the commission of at least two such offenses.’” Love v. State, 706 S.W.3d 584, 606 (Tex.
App.—Austin 2024, pet. ref’d) (quoting Ramos v. State, 636 S.W.3d 646, 655–57 (Tex. Crim.
App. 2021)); see Stephenson v. State, 673 S.W.3d 370, 390, 395 (Tex. App.—Fort Worth 2023,
pet. ref’d) (noting that Court of Criminal Appeals “has yet to weigh in on the allowable unit of
prosecution for continuous sexual abuse” and concluding that unit was “‘repeated acts of sexual
abuse that occur over an extended period of time [30 or more days in duration] against a single
complainant.’” (quoting Cisneros v. State, 622 S.W.3d 511, 520 (Tex. App.—Corpus Christi–
Edinburg 2021, no pet.)). By contrast, the gravamen of indecency by sexual contact is the nature
of the prohibited conduct, namely, the breast-touching, Loving v. State, 401 S.W.3d 642, 649
(Tex. Crim. App. 2013), and the allowable unit of prosecution is each discrete act of touching,
12 even when the acts are part of the same transaction, Hernandez v. State, 631 S.W.3d 120, 124
(Tex. Crim. App. 2021). Sex offenses are “narrowly focused,” and “statutes defining sex
offenses minutely detail the prohibited conduct.” Id. “The Legislature intended punishment for
each prohibited act, not merely each ‘incident.’” Id. The disparate focuses of continuous sexual
abuse and indecency by breast-touching, and the fact that the latter is not a predicate offense of
the former, are further reasons why the two offenses are not the same for double-jeopardy
purposes. We conclude that no double-jeopardy violation is clearly apparent from the face of the
record in this case. See Garfias, 424 S.W.3d at 57–58, 64; Hernandez, 2026 WL 77267, at *5–6.
For these reasons, we overrule Mansolo’s first issue.
II. Sufficiency of the Evidence
In his second issue, Mansolo contends that the evidence was insufficient to
support the jury’s guilty findings. Specifically, he argues that there was a “[l]ack of
corroborating evidence regarding the aggravated sexual assault,” which served as a potential
predicate offense for the continuous-sexual-abuse charge, and that a “conviction based on
indecency with a child also lacks support” because there was a “non-sexual explanation for the
touching”; his conduct did not escalate, suggesting that it was “accidental or inadvertent”; and a
rational juror could have found that he lacked the requisite intent. The State responds that
Valerie’s and Amanda’s testimony alone was sufficient to support Mansolo’s convictions and
that both Hughes and Mother corroborated portions of the girls’ testimony.
Due process requires that the State prove beyond a reasonable doubt every
element of the crimes charged. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Lang v. State,
561 S.W.3d 174, 179 (Tex. Crim. App. 2018). When reviewing the sufficiency of the evidence
13 to support a conviction, we consider all of the evidence in the light most favorable to the verdict
to determine whether, based on that evidence and reasonable inferences therefrom, any rational
trier of fact could have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). We
measure the sufficiency of the evidence against the hypothetically correct jury charge. Garcia
v. State, 667 S.W.3d 756, 762 (Tex. Crim. App. 2023).
In conducting our review, we evaluate all the evidence in the record, whether
direct or circumstantial, properly or improperly admitted, or submitted by the prosecution or the
defense. Thompson v. State, 408 S.W.3d 614, 627 (Tex. App.—Austin 2013, no pet.);
see Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). “Circumstantial evidence is
as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence
alone can be sufficient to establish guilt.” Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim.
App. 2014). We presume that the trier of fact resolved conflicts in the testimony, weighed the
evidence, and drew reasonable inferences in a manner that supports the verdict. Jackson,
443 U.S. at 318; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). Our concern is
whether the factfinder reached a rational decision. Arroyo v. State, 559 S.W.3d 484, 487 (Tex.
Crim. App. 2018); see Morgan v. State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016) (observing
that reviewing court’s role on appeal “‘is restricted to guarding against the rare occurrence when
a fact finder does not act rationally’” (quoting Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim.
App. 2010))).
The trier of fact is the sole judge of the weight and credibility of the evidence.
Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018); see Tex. Code Crim. Proc.
art. 36.13 (explaining that “the jury is the exclusive judge of the facts”). Thus, when performing
14 an evidentiary-sufficiency review, we may not re-evaluate the weight and credibility of the
evidence and substitute our judgment for that of the factfinder. Arroyo, 559 S.W.3d at 487.
When the record supports conflicting reasonable inferences, we presume that the
factfinder resolved the conflicts in favor of the verdict, and we defer to that resolution. Zuniga,
551 S.W.3d at 733; see Musacchio v. United States, 577 U.S. 237, 243 (2016) (reaffirming that
appellate sufficiency review “does not intrude on the jury’s role ‘to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts’” (quoting Jackson, 443 U.S. at 319)). We must “‘determine whether the necessary
inferences are reasonable based upon the combined and cumulative force of all the evidence
when viewed in the light most favorable to the verdict.’” Murray v. State, 457 S.W.3d 446, 448
(Tex. Crim. App. 2015) (quoting Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007)). The factfinder may rely on common sense and apply observation and experience gained
in ordinary affairs when drawing inferences from the evidence. Acosta, 429 S.W.3d at 625.
A person commits continuous sexual abuse of a young child if, “during a period
that is thirty or more days in duration, he commits two or more acts of sexual abuse and, at the
time of the commission of each act, he is seventeen years of age or older and the victim is a child
younger than fourteen.” Garner v. State, 523 S.W.3d 266, 271 (Tex. App.—Dallas 2017, no
pet.); see Tex. Penal Code § 21.02(b). An “act of sexual abuse” includes aggravated sexual
assault and indecency by genital-touching. See Tex. Penal Code § 21.02(c)(2), (4). When a jury
is the trier of fact, jurors do not have to agree unanimously on the specific acts of sexual abuse or
the exact dates when the acts were committed. Id. § 21.02(d). The offense has no mens rea
element of its own; the requisite mental states are those for the predicate offenses. See Love,
706 S.W.3d at 603. Neither is the location of the acts, which need not occur in the same county,
15 an element of the offense. Hinojosa v. State, 555 S.W.3d 262, 267 (Tex. App.—Houston [1st
Dist.] 2018, pet. ref’d).
As charged in this case, a person commits aggravated sexual assault of a child if,
regardless of whether he knows the child’s age at the time of the offense, he intentionally or
knowingly causes the sexual organ of a child younger than fourteen years of age to contact his
mouth. 6 See Tex. Penal Code § 22.021(a)(1)(B)(iii), (2)(B). “‘Any penetration, no matter how
slight, is sufficient to satisfy the requirements’ of the aggravated sexual assault statute.” Cantu
v. State, 678 S.W.3d 331, 358 (Tex. App.—San Antonio 2023, no pet.) (quoting Johnson
v. State, 449 S.W.2d 65, 68 (Tex. Crim. App. 1969)).
As charged in this case, a person commits indecency with a child if he engages in
sexual contact with a child younger than seventeen years of age by touching, including through
clothing, the child’s breast or any part of the child’s genitals with the intent to arouse or gratify
the sexual desire of any person. See Tex. Penal Code § 21.11(a)(1), (c)(1). “[I]t is well
established that ‘the requisite specific intent to arouse or gratify the sexual desire of any person
can be inferred from the defendant’s conduct, his remarks and all surrounding circumstances.’”
Corporon v. State, 586 S.W.3d 550, 562 (Tex. App.—Austin 2019, no pet.) (quoting McKenzie
v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981)); see Moore v. State, 969 S.W.2d 4, 10
(Tex. Crim. App. 1998) (“Mental states are almost always inferred from acts and words.”).
“Intent can be inferred from conduct alone, and no oral expression of intent or visible evidence
of sexual arousal is necessary.” Tienda v. State, 479 S.W.3d 863, 873 (Tex. App.—Eastland
2015, no pet.).
6Aggravated sexual assault and indecency by genital-touching were charged as predicate offenses for continuous sexual abuse of a young child in this case. See Tex. Penal Code § 21.02(c). 16 For all three offenses—continuous sexual abuse, aggravated sexual assault, and
indecency by both genital- and breast-touching—the uncorroborated testimony of the
child-victim alone is sufficient to support a conviction. Tex. Code Crim. Proc. art. 38.07(a),
(b)(1); see Turner v. State, 573 S.W.3d 455, 459 (Tex. App.—Amarillo 2019, no pet.) (“[T]he
uncorroborated testimony of a child sexual abuse victim alone is sufficient to support a
conviction for either the offense of continuous sexual abuse or the underlying predicate offenses
of indecency with a child or sexual assault.”). Medical or physical evidence is not required.
Turner, 573 S.W.3d at 459. Moreover, courts “liberally construe the testimony of child sexual
abuse victims,” Cantu, 678 S.W.3d at 358, and outcry testimony retains probative value even if
contradicted, especially if other witnesses corroborate it, see Bargas v. State, 252 S.W.3d 876,
888 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (citing Chambers v. State, 805 S.W.2d 459,
461 (Tex. Crim. App. 1991)).
Both Valerie and Amanda testified that Mansolo touched their vaginas and breasts
with his hand or a cloth on many occasions while bathing them. Valerie also testified that he
touched her vagina over her clothing with his hand during the assault in his and Grandmother’s
bed. A reasonable juror could have inferred from the girls’ testimony that at least two of the
vaginal-touching incidents occurred during a period that was thirty or more days in duration.
Jackson, 443 U.S. at 318; Laster, 275 S.W.3d at 517. Valerie testified that Mansolo bathed and
touched them “almost every time [they] came over,” that there were “multiple months” between
incidents and “probably a few years” between the first and last incidents, and that the occasions
on which he touched her vagina would sometimes “span over a period of months.”
Although Amanda testified that she did not think that the abuse lasted more than a
month, she also testified that it began when she was five and ended when the family moved out
17 of their San Antonio apartment and into Mansolo and Grandmother’s house. Mother testified
that Amanda was born in October 2008; thus, Amanda would have been five in 2013. As the
family moved into Mansolo and Grandmother’s house in December 2014, a reasonable juror
could have concluded that the incidents of vaginal touching occurred over a period of more than
a year. Additionally, Hughes testified that Amanda had reported being the victim of a sexual
assault that occurred when she was “between five and seven years old.” To the extent that
Amanda’s testimony was internally inconsistent or contradicted Valerie’s testimony, the jury was
the sole judge of credibility, and we presume that it resolved any conflicts in favor of its verdict.
See Zuniga, 551 S.W.3d at 733; see also Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim.
App. 2010) (stating that trier of fact “is entitled to believe or disbelieve all or part of the
witness’s testimony—even if that testimony is uncontroverted—because [it] has the opportunity
to observe the witness’s demeanor and appearance”).
A rational juror could likewise have found one of the predicate offenses for
continuous sexual abuse to be satisfied by Mansolo licking Valerie’s vagina during the couch
assault, which she testified occurred a few months before the assault in the bed and a few weeks
after the first incident of touching in the bathroom. Alternatively, the juror could have found that
Mansolo committed a predicate offense when he touched Amanda’s vagina during the lice
incident, which, according to Mother, occurred when Amanda was four, approximately a year
before Amanda testified that the bathroom touching began. Mother testified that Amanda had
known how to bathe herself at the time, and Grandmother testified that Amanda alleged Mansolo
had “hurt her down there.” Asked if she would agree that it would be difficult for a child to get
lice shampoo on her vagina, Grandmother testified only, “I don’t agree with you or disagree with
18 you on that.” Although neither Valerie nor Amanda remembered the lice incident, it was again
the jury’s responsibility to resolve questions of credibility.
While the girls’ testimony alone was sufficient to support the jury’s findings of
guilt, see Tex. Code Crim. Proc. art. 38.07; Turner, 573 S.W.3d at 459, their allegations were
corroborated by testimony from Hughes, Mother, and Grandmother. Hughes testified that
Amanda’s suicidal ideation could have resulted from trauma caused by sexual abuse and that
“her experience with the sexual assault and her outcry with that was something she had
experienced.” Mother testified that no one had told her that Mansolo was bathing her daughters
and that Valerie and Amanda became more withdrawn and isolated as they got older.
Grandmother made statements to police indicating that Mansolo bathed the girls. Moreover, she
testified that Valerie would sit on Mansolo’s lap, that the two were sometimes alone on the
couch together, that Valerie and Amanda slept on an air mattress at the foot of the bed, and that
the bedroom had an air-conditioning unit with a green light.
On this record, a rational juror could have found from Mansolo’s conduct that he
possessed the necessary mental states to commit aggravated sexual assault and indecency with a
child by sexual contact. See Corporon, 586 S.W.3d at 562; Tienda, 479 S.W.3d at 873.
Although Mansolo argues that the evidence against him could have been greater and that there
was a “valid other non-sexual explanation for the touching,” we consider only “the combined
and cumulative force of all admitted evidence in the light most favorable to the conviction to
determine whether, based on the evidence and reasonable inferences therefrom, a rational trier of
fact could have found each element of the offense beyond a reasonable doubt.” Ramsey v. State,
473 S.W.3d 805, 808 (Tex. Crim. App. 2015) (emphasis added); see Jackson, 443 U.S. at 313.
What is more, “[b]eyond a reasonable doubt . . . does not require the State to disprove every
19 conceivable alternative to a defendant’s guilt,” and the State is no longer required to negate every
other reasonable hypothesis raised by the evidence. Ramsey, 473 S.W.3d at 808 & n.3;
see Ingerson v. State, 559 S.W.3d 501, 509 (Tex. Crim. App. 2018) (“Focusing on other
reasonable explanations for evidence improperly applies the abrogated reasonable-
alternative-hypothesis construct.”).
For the foregoing reasons, we conclude that the evidence in this case was
sufficient to support the jury’s findings of guilt. We overrule Mansolo’s second issue.
III. Jury-Charge Error
Mansolo’s third and fourth issues involve alleged error in the guilt-innocence jury
charge. A trial court is statutorily obligated to instruct the jury on the “law applicable to the
case.” See Tex. Code Crim. Proc. art. 36.14; Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim.
App. 2018). The jury charge should tell the jury what law applies and how it applies to the case.
Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007).
“Jury charges contain both an abstract section and an application section.”
See Torres v. State, 691 S.W.3d 138, 147 (Tex. App.—Austin 2024, pet. ref’d). The abstract
portion of a charge serves as a glossary to explain the meanings of concepts and terms used in
the application portion of the charge but “does not authorize conviction on its own.” Id. “The
application paragraph is the portion of the jury charge that applies the pertinent penal law,
abstract definitions, and general legal principles to the facts and indictment allegations of a given
case.” Id.; see Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). Because the
application paragraph “specifies the factual circumstances under which the jury should convict or
acquit, it is the ‘heart and soul’ of the jury charge.” Vasquez, 389 S.W.3d at 367. In reviewing a
20 charge for possible error, we “‘must examine the charge as a whole rather than as a series of
isolated and unrelated statements.’” Id. (quoting Dinkins v. State, 894 S.W.2d 330, 339 (Tex.
Crim. App. 1995)).
We review alleged jury-charge error in two steps: first, we determine whether
error exists; if so, we then evaluate whether sufficient harm resulted from the error to require
reversal. Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022). When, as here, the
defendant does not make a timely objection during the proceedings below, we must determine
whether the record establishes that the error caused him “egregious harm.” See Gonzalez
v. State, 610 S.W.3d 22, 27 (Tex. Crim. App. 2020). “Neither party bears a burden of production
or persuasion with respect to [the] harm analysis, the question being simply what the record
demonstrates.” Hollander v. State, 414 S.W.3d 746, 749–50 (Tex. Crim. App. 2013).
A. Subsection 21.02(c)(2) Limiting Instruction
Mansolo’s third issue centers on the limited scope of indecency with a child by
sexual contact when used as a predicate offense, or “act of sexual abuse,” for a charge of
continuous sexual abuse of a young child. See Tex. Penal Code § 22.11(c). When indecency by
sexual contact is charged as a standalone offense—such as in counts two and three in this case—
“sexual contact” includes touching of “the anus, breast, or any part of the genitals of a child.”
See id. § 22.11(c)(1). However, when indecency by sexual contact is charged as a predicate
offense for continuous sexual abuse, breast-touching is expressly excluded as a manner of
committing indecency by sexual contact. Id. § 21.02(c)(2). Thus, one potential “act of sexual
abuse” that may serve as a predicate offense to prove continuous sexual abuse is “indecency with
a child[,] . . . if the actor committed the offense in a manner other than by touching, including
21 touching through clothing, the breast of a child.” Id. Mansolo contends that because the jury
charge did not explicitly instruct the jury that indecency by breast-touching is not a predicate
offense for continuous sexual abuse, jurors might have convicted him of continuous sexual abuse
“for touching the two complainant[s’] breasts during the shower incident while disbelieving the
testimony regarding the other acts.”
We agree with the State that when viewed as a whole, the jury charge’s structure
and language clearly conveyed the understanding that indecency by breast-touching—while
sufficient to support convictions for the standalone allegations of indecency by sexual contact—
could not serve as a predicate offense for the continuous-sexual-abuse allegation. The charge
included a section with the heading “Specific Instructions for Each Count,” below which were
subheadings for “I. Continuous Sexual Abuse of a Young Child” and “II. Indecency with a Child
by Contact.” Under each subheading, the charge was further subdivided into abstract and
application portions.
The abstract portion of the charge for continuous sexual abuse included the
following instructions:
Our law provides 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 l7 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 Indecency with a Child, as defined herein.
A person commits the offense of Indecency with a Child if, with a child younger than seventeen (l7) years of age, the person engages in sexual contact with the child or causes the child to engage in sexual contact.
22 “Sexual contact” means the following act, if committed with the intent to arouse or gratify the sexual desire of any person: any touching by a person, including touching through the clothing, of any part of the genitals of a child.
We note that the definition of “sexual contact” mirrored the indictment by
limiting indecency by sexual contact—when used a predicate offense for continuous sexual
abuse—to genital-touching. The abstract portion similarly instructed the jury that to find
Mansolo guilty of continuous sexual abuse, it “must agree unanimously that the defendant,
during a period that is 30 or more days in duration, committed two or more acts of sexual abuse,
as that term has been previously defined.” (emphasis added).
The application portion of the continuous-sexual-abuse charge likewise required
jurors, before they could find Mansolo guilty, to find beyond a reasonable doubt that he
committed two or more acts of sexual abuse against Valerie Watson [Pseudonym] and Amanda Watson [Pseudonym], said acts of sexual abuse having been violations of one or more of the following penal laws, to-wit:
Indecency with a child, to—wit: the said Lonnie Mansolo, did then and there, with intent to arouse or gratify the sexual desire of any person, engage in sexual contact with the said Valerie Watson [Pseudonym] by touching any part of the genitals of the said Valerie Watson [Pseudonym] with the hand or fingers of the said Lonnie Mansolo,
Indecency with a child, to-wit: the said Lonnie Mansolo, did then and there, with intent to arouse or gratify the sexual desire of any person, engage in sexual contact with the said Amanda Watson [Pseudonym] by touching any part of the genitals of the said Amanda Watson [Pseudonym] with the hand or fingers of the said Lonnie Mansolo . . . .
Conversely, the abstract portion of the indecency charges included both breast-
and genital-touching in the definition of “sexual contact”: “‘Sexual contact’ means the following
act, if committed with the intent to arouse or gratify the sexual desire of any person: any
23 touching by a person, including touching through the clothing, of the breast, or any part of the
genitals of a child.” And the application portion of the indecency charges instructed jurors that
in order to find Mansolo guilty, they must find beyond a reasonable doubt that he “engage[d] in
sexual contact . . . by touching the breasts of” Valerie and Amanda.
There is no evidence that the jury did not follow the trial court’s instructions
regarding the different meanings of “sexual contact,” so we presume that the jury followed the
court’s instructions. See Allison v. State, 666 S.W.3d 750, 765 (Tex. Crim. App. 2023). The
charge did not risk creating the impression that indecency by breast-touching could serve as a
predicate offense for continuous sexual abuse and, moreover, allowed jurors to use indecency by
sexual contact as a predicate offense only if they found beyond a reasonable doubt that Mansolo
touched Valerie’s or Amanda’s genitals with his hand or fingers. The distinct scopes of “sexual
contact” with respect to continuous sexual abuse and indecency by sexual contact were
further illustrated by the abstract and application portions of the standalone indecency charges,
which—unlike the continuous-sexual-abuse charge—authorized a guilty finding based on
breast-touching. Based on the facts in this case, the trial court did not err by not explicitly
instructing the jury that indecency by breast-touching is not a predicate offense for continuous
sexual abuse of a young child. But cf. Braggs v. State, No. 02-23-00166-CR, 2024 WL 1451984,
at *4–5 (Tex. App.—Fort Worth Apr. 4, 2024, pet. ref’d) (mem. op., not designated for
publication) (“Certainly, including a breast-touching carve-out would be the safest approach, and
the trial court would have committed no error in so doing.”).
Having concluded that the trial court did not err, we need not reach the issue of
harm. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (“Our first duty in
analyzing a jury-charge issue is to decide whether error exists. Then, if we find error, we
24 analyze that error for harm.”); Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim. App. 1998)
(“Almanza [harm-analysis] does not apply unless the appellate court first finds ‘error’ in the jury
charge.”). We overrule Mansolo’s third issue.
B. Definition of “During”
In his fourth issue, Mansolo contends that the trial court erred by failing to define
the term “during.” See Tex. Penal Code § 21.02(b)(1). He cites a concurrence to our sister
court’s decision in Perez v. State for the proposition that in a continuous-sexual-abuse case, “the
jury charge should . . . include[] the definition of ‘during.’” See 689 S.W.3d 369, 385 (Tex.
App.—Corpus Christi–Edinburg 2024, no pet.) (Contreras, C.J., concurring). The State responds
that non-statutory definitions are generally disfavored, that the charge in this case tracked section
21.02 of the Penal Code, and that we should instead be guided by the majority opinion in Perez.
Alternatively, the State argues that Mansolo was not harmed by the definition’s omission.
The jury charge in Perez contained the following instructions:
1.
A person commits the offense of Continuous Sexual Abuse of a Child if:
(1) 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;
(2) At the time of the commission of each of the acts of sexual abuse, the actor was 17 years of age or older and the victim is a child younger than 14 years of age.
4.
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
25 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.
5.
Now if you find from the evidence beyond a reasonable doubt that the Defendant, ORLANDO REYES PEREZ, did then and there, in Hidalgo County, Texas, during a period that was 30 or more days in duration, to-wit: from on or about the 15th day of September, 2017, to on or about the 1st day of December, 2018, when the defendant was 17 years of age or older, committed two or more acts of sexual abuse against MARIA GARCIA, a pseudonym, a child younger than 14 years of age, namely aggravated sexual assault of a child and indecency with a child, then you will find the Defendant guilty of the offense of Continuous Sexual Abuse of a Child as charged in this indictment.
Id. at 379–80; see Tex. Penal Code § 21.02(b)(1). The court of appeals concluded that the
instruction tracked the statutory language and was therefore not erroneous, explaining:
Perez has failed to explain how this language misstates the law. The charge expressly required a finding that, during a period that was thirty or more days in duration, Perez committed two or more acts of sexual abuse, and thus the charge reflects the language and structure of the offense as provided by the Penal Code. We disagree with any suggestion that delineating the period of continuous abuse with specific dates that were themselves more than thirty days apart somehow nullified the abstract portion of the charge or the immediately preceding requirement in the application paragraph that Perez committed two or more acts of sexual abuse “during a period that was 30 or more days in duration.”
Perez, 689 S.W.3d at 379–80. (internal citations omitted).
In her concurrence, Chief Justice Contreras stated that although the charge tracked
the statute “precisely,” the statutory language was insufficient because it “did not explicitly
inform the jury that there must be ‘at least 28 days’ between the days of the first and last acts of
abuse.” Id. at 383; see Turner, 573 S.W.3d at 462 (determining that charge requiring two or
more acts of sexual abuse “on or about June 1, 2013 through August 1, 2013, . . . during a period
26 that was 30 days or more in duration” was erroneous because it did not “make it clear that the
first and last acts must occur thirty or more days apart”); Smith v. State, 340 S.W.3d 41, 50 (Tex.
App.—Houston [1st Dist.] 2011, no pet.) (concluding that charge allowing jury to find
defendant guilty if he committed two or more acts of sexual abuse “on or about the 1st day of
December, 2007, through the 1st day of September, 2008, which said time period being a period
that was 30 days or more in duration” “lack[ed] clarity” and allowed for conviction “regardless
of whether the acts occurred at least 30 days apart”); see also Committee on Pattern Jury
Charges, State Bar of Tex., Texas Criminal Pattern Jury Charges: Crimes Against Persons
& Property (“CPJC”) ch. 21.2 (2024) (calling meaning of durational element “[p]erhaps the
major ambiguity” in section 21.02 and recommending that trial court instruct jury, “With regard
to element 2, you must all agree that at least thirty days passed between the first and last acts of
sexual abuse committed by the defendant”); Lozano v. State, 706 S.W.3d 429, 458 (Tex. App.—
Austin 2024, no pet.) (relying on pattern jury charges when addressing jury-charge error). At
present, there is a split among our sister courts regarding the necessity of such an instruction. 7
See Poor v. State, 715 S.W.3d 15, 31 (Tex. App.—Eastland 2024, pet. ref’d) (recognizing split
and agreeing with “majority” of courts of appeals that absence of instruction was not erroneous);
Lewis v. State, 693 S.W.3d 453, 462–64 (Tex. App.—Houston [14th Dist.] 2023, pet. ref’d)
(discussing split and holding that absence of instruction was not erroneous).
From the substance of his briefed argument, Mansolo’s reference to the
“definition” of “during” appears to challenge the absence of the type of instruction considered in
7 This Court has not yet weighed in with a published decision. One court of appeals has decided that “the appellate courts’ conflicting decisions” about how to approach instructions on the durational element “counsels in favor of proceeding to a harm analysis” without making an error determination. Pelcastre v. State, 654 S.W.3d 579, 588 (Tex. App.—Houston [14th Dist.] 2022, pet. ref’d). 27 Smith, Turner, and Perez, namely, an instruction that at least twenty-eight (or thirty) days must
pass between the first and last acts of sexual abuse. See Tex. R. App. P. 38.9 (requiring courts of
appeals to construe briefing rules liberally). We first note that analyses of the appropriateness of
such an instruction are highly fact-dependent; they involve a close reading of the particular jury
charge in each case to determine whether it could have misled the jury and whether it
appeared to authorize a guilty finding if jurors found that a defendant committed two or more act
of sexual abuse within a thirty-day period. See, e.g., Lewis, 693 S.W.3d at 461; Perez,
689 S.W.3d at 379–80; Turner, 573 S.W.3d at 462; Smith, 340 S.W.3d at 50.
In reviewing the omission of what we might call a Smith instruction, courts of
appeals place heavy emphasis on whether the charge was potentially confusing or misleading,
see Pelcastre v. State, 654 S.W.3d 579, 587 (Tex. App.—Houston [14th Dist.] 2022, pet. ref’d)
(“Appellate courts have split as to whether [the durational element’s statutory language] is
sufficiently confusing to the jury to constitute charge error.”), and whether the charge tracked the
statutory language of section 21.02, see Lewis, 693 S.W.3d at 464 (“Generally, a jury charge that
tracks statutory language is not erroneous.”). But cf. Navarro v. State, 469 S.W.3d 687, 699
(Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (“A charge will not prevent confusion if the
statutory text on which it is based has a variable meaning in the eyes of the jury.”).
The application portion of the continuous-sexual-abuse charge in this case,
contrary to the State’s assertion, did not track the language of section 21.02. Indeed, it did not
include the statutory durational element at all. The application portion provided, in relevant
part, only:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 6th day of October, 2013, through on or about the 31st day of May, 2016, in
28 Comal County, Texas, Lonnie Mansolo, hereinafter styled Defendant, committed two or more acts of sexual abuse against Valerie Watson [Pseudonym] and Amanda Watson [Pseudonym] . . . then you will find the defendant guilty of the offense of Continuous Sexual Abuse of a Young Child as charged in Count I of the indictment and so answer on the verdict form provided.
(emphasis added). 8
We conclude that under the facts of this case, the trial court’s failure to instruct
the jury that at least thirty days must pass between the first and last acts of sexual abuse
resulted in a charge that failed to set forth the law applicable to the case, see Tex. Code Crim.
Proc. art. 36.14, and that potentially confused and misled the jury, see Reeves v. State,
420 S.W.3d 812, 818 (Tex. Crim. App. 2013) (“‘It is not the function of the charge merely to
avoid misleading or confusing the jury: it is the function of the charge to lead and to prevent
confusion.’” (quoting Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977)). We thus
proceed to a consideration of harm. See Alcoser, 663 S.W.3d at 165.
C. Harm
Errors that result in egregious harm are those that affect the very basis of the case,
deprive the defendant of a valuable right, or vitally affect a defensive theory. Gonzalez,
610 S.W.3d at 27; see Chambers v. State, 580 S.W.3d 149, 154 (Tex. Crim. App. 2019) (stating
that egregious harm occurs when error “created such harm that the appellant was deprived of a
fair and impartial trial”). The appellant must have suffered actual, and not merely theoretical,
harm. Gonzalez, 610 S.W.3d at 27. The determination depends “on the unique circumstances
8 The charge was thus erroneous irrespective of the Smith instruction’s omission. See Niles v. State, 555 S.W.3d 562, 564 (Tex. Crim. App. 2018) (“The failure to include a jury instruction on an element of an offense included within the charging instrument amounts to jury charge error subject to a harm analysis.”). However, Mansolo did not challenge the jury charge on the ground that it omitted a statutory element. 29 of” each case and “is factual in nature.” Saenz v. State, 479 S.W.3d 939, 947 (Tex. App.—
San Antonio 2015, pet. ref’d); see Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002)
(stating “that egregious harm is a difficult standard” to meet). In determining whether egregious
harm exists, we must evaluate the entire record in light of four factors: 1) the complete jury
charge; 2) the arguments of counsel; 3) the entirety of the evidence, including the contested
issues and weight of the probative evidence; and 4) any other relevant factors revealed by the
record as a whole. Gonzalez, 610 S.W.3d at 27; Hollander, 414 S.W.3d at 749–50.
i. Complete Jury Charge
The trial court twice instructed the jury about the durational element in the
abstract portion of the continuous-sexual-abuse charge:
Our law provides 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 l7 years of age or older and the victim is a child younger than 14 years of age.
In order to find the defendant guilty of the offense of Continuous Sexual Abuse of a Young Child, 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. However, in order to find the defendant guilty of the offense of Continuous Sexual Abuse of a Young Child, you must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse, as that term has been previously defined.
The latter instruction immediately preceded the charge’s application portion. At
least two of our sister courts have underscored the importance of similar language. The majority
in Perez disagreed with
30 any suggestion that delineating the period of continuous abuse with specific dates that were themselves more than thirty days apart somehow nullified the abstract portion of the charge or the immediately preceding requirement in the application paragraph that Perez committed two or more acts of sexual abuse “during a period that was 30 or more days in duration.”
689 S.W.3d at 380. And the Pelcastre court, performing a harm analysis, noted, “While
appellant contends the charge contains error in the application paragraph for the
continuous-sexual-abuse offense, the charge twice states the correct standard, tracking the
language of the statute, earlier in the charge.” 654 S.W.3d at 588. The inclusion of the
durational element in the abstract portion—in language tracking the statute—is particularly
important when it is remembered that the error here concerns the omission of a Smith instruction
from the charge’s abstract portion and that Mansolo has not alleged error in the application
paragraph. This factor thus weighs against finding egregious harm.
ii. Arguments of counsel
In the prosecutors’ closing argument and rebuttal, they went beyond the statutory
text and repeatedly reminded jurors that at least thirty days must have passed between two of the
acts of sexual abuse, including by referencing an extensive discussion of the issue during
voir dire:
• Some people had some concerns about, well, if I heard it happened 29 times in a row inside of 30 days, I’d want to find him guilty. And those people are no longer here because they couldn’t follow the law. The law is that—during a period 30 days or more in duration. That’s what the law is.
And so, you look at that. You look at the offense and you ask yourselves, did two or more acts occur outside of that 30-day window?
31 • Whether it’s four, four, and four [jurors]; six and six. It doesn’t matter. As long as you unanimously say, outside of 30 days and two separate acts, you find him guilty of that.
• [A]fter y’all have unanimously agreed that two acts occurred outside of 30 days, I’m asking you to sign that he’s guilty.
• As long as every one of you agrees that two acts occurred outside that 30-day period, no matter what those two acts were, that’s enough to satisfy the elements.
• If you remember from voir dire, the date doesn’t matter. As long as the incidents occurred before April 12th of 2023, it doesn’t matter, assuming that you believe that the incidents occurred 30 days apart.
Consequently, we conclude that this factor also weighs against finding egregious
harm. See Campbell v. State, 664 S.W.3d 240, 253 (Tex. Crim. App. 2022) (noting that State’s
argument “undoubtedly helped to remedy the alleged error in the charge”); French v. State,
563 S.W.3d 228, 238 (Tex. Crim. App. 2018) (explaining that State’s closing arguments focused
jury’s attention in way that rendered charge error harmless); Gelinas v. State, 398 S.W.3d 703,
709 (Tex. Crim. App. 2013) (plurality op.) (emphasizing “that jury arguments bear significantly
on an Almanza analysis”).
iii. State of the Evidence
The evidence in this case was thoroughly discussed in our review of Mansolo’s
second issue. Notably, the evidence against him was strong, involving outcries from two
child-victims, portions of whose testimony were corroborated by additional witnesses, including
Mansolo’s wife, who testified for the defense. See Turner, 573 S.W.3d at 463 (finding that
defendant was not egregiously harmed in part because “the jury heard the mutually confirming
testimony of two witnesses” and because “the fact that both witnesses told the same general story
32 substantially increases the weight and probative value of both witnesses’ testimony,” “substantial
parts” of which were corroborated).
Valerie’s and Amanda’s testimony was especially probative with respect to the
durational element. Valerie testified that the vaginal touching occurred over a period of years
and that the occasions on which Mansolo touched her vagina would sometimes “span over a
period of months.” She also testified that the couch assault, in which he licked her vagina,
occurred a few months before the bed assault, in which he touched it. Amanda testified that the
vaginal touching in the bathroom began when she was five and ended when the family moved
out of its San Antonio apartment in December 2014, when she was six. She told Hughes that she
was sexually assaulted between the ages of five and seven. The lice incident, in which both
Mother and Grandmother testified that Mansolo touched Amanda’s vagina, occurred when
Amanda was four. Mansolo did not present affirmative evidence that the acts of abuse occurred
over a period of fewer than thirty days. See Pelcastre, 654 S.W.3d at 589; Smith, 340 S.W.3d at
51. “Because the evidence shows that the abuse occurred over at least several months of time,
this weighs against a finding of egregious harm.” Smith, 340 S.W.3d at 51.
iv. Other Relevant Information
The significance of the durational element featured heavily in voir dire and was
discussed by both sides. See Torres, 691 S.W.3d at 154–55 (discussing whether jury-charge
error’s subject arose during voir dire). As characterized by the State, the element meant “for
example, you have March 1st, an act occurs, and then you have March 31st, an act occurs. It has
to be outside of that 30-day period for purposes of this statute.” When some veniremembers
expressed a potential inability to follow the law regarding the durational element, the State again
33 cautioned that in order to find Mansolo guilty, the eventual jury must “all agree that two of those
acts occurred outside of that 30-day period.” Defense counsel reiterated that “it needs to be
proven that it happened 30 days apart” and questioned veniremembers as to whether they could
follow the law “if [the State] just proved that it happened on multiple occasions from under
30 days.”
The indictment, which was read to the jury during Mansolo’s arraignment,
tracked the statutory language and charged that “on or about the 6th day of October 2013,
through on or about the 31st day of May of 2016, during a period that was 30 days or more in
duration, [he] committed two or more acts of sexual abuse against Valerie Watson (pseudonym),
and Amanda Watson (pseudonym).” The jury charge in turn instructed jurors to find Mansolo
guilty or not guilty “of the offense of Continuous Sexual Abuse of a Young Child as charged in
Count I of the indictment.” See Smith, 340 S.W.3d at 52 (stating, as part of harm analysis, that
when indictment was read, defendant “did not object to the phrasing of the indictment or claim
he lacked notice”).
Lastly, during the jury’s deliberation, jurors submitted a question asking when
Amanda testified that the abuse stopped and explained that there was disagreement about her
testimony. The trial court isolated the relevant testimony and provided it to the jury. Given that
the charge instructed jurors that the specific timing of the offenses was unimportant so long as
they occurred before the indictment, it would be reasonable to infer from the jurors’ question that
they understood the durational element and the importance of ensuring that two predicate
offenses occurred over a period of at least thirty days. At a minimum, there is nothing in the
record to indicate that jurors were confused by the durational element.
34 For these reasons, this factor—like the others—weighs against finding egregious
harm. Because all four factors weigh against finding egregious harm, we conclude that Mansolo
was not egregiously harmed by the Smith instruction’s omission. See Gonzalez, 610 S.W.3d at
27. We overrule his fourth issue.
IV. Notice of Outcry Witness
In his fifth issue, Mansolo contends that the State failed to provide him with
statutorily required notice identifying its outcry witness in advance of trial. See Tex. Code Crim.
Proc. art. 38.072, § 2(b). The State responds that the issue was not preserved and that,
alternatively, Mansolo was not harmed by the lack of notice.
Error under article 38.072 is subject to the preservation requirement codified in
Rule of Appellate Procedure 33.1(a). See Tex. R. App. P. 33.1(a); see also Brown v. State,
No. 04-23-00081-CR, 2024 WL 3167354, at *5 (Tex. App.—San Antonio June 26, 2024, no
pet.) (mem. op., not designated for publication) (concluding that defendant failed to preserve
complaint for appeal because “[a]t no point during the [outcry] hearing did [he] object on the
basis that he did not receive adequate notice of the State’s intention to call C.J.’s grandmother as
an outcry witness as required by article 38.072”); Taylor v. State, 509 S.W.3d 468, 473–74 (Tex.
App.—Austin 2015, pet. ref’d) (concluding that by failing to object, defendant “waived any
alleged error regarding the admission of evidence concerning the outcry statements”); Bargas,
252 S.W.3d at 895 (declining to reach merits of outcry-notice claim because defendant “failed to
preserve error by objecting at the outcry hearing”); Josey v. State, 97 S.W.3d 687, 692 (Tex.
App.—Texarkana 2003, no pet.) (“Josey did not raise this issue of lack of proper outcry notice of
any witnesses before the trial court, and it is therefore not preserved for review.”). A defendant
35 who makes a hearsay objection during the outcry hearing preserves error for any failure by the
State to comply with the mandatory requirements of article 38.072. See Long v. State,
800 S.W.2d 545, 547–48 (Tex. Crim. App. 1990); Yebio v. State, 87 S.W.3d 193, 197–98 (Tex.
App.—Texarkana 2002, pet. ref’d).
Here, Mansolo made neither a notice objection nor a hearsay objection during the
outcry hearing. 9 Defense counsel announced only an intention conditionally to object on hearsay
grounds if Hughes mentioned statements made by Valerie to Amanda during Hughes’s testimony
before the jury. 10 Counsel’s only other objection during the hearing was to a lack of notice were
Hughes to testify as an expert witness.
Because Mansolo did not object during the hearing to the State’s failure to
comply with subsection 2(b) of article 38.072 or on the basis of hearsay, we agree with the State
that the issue was not preserved. See Taylor, 509 S.W.3d at 473–74. We therefore overrule his
fifth issue.
CONCLUSION
Having overruled Mansolo’s issues, we affirm the trial court’s judgments
of conviction.
9The State explained that it would not call an outcry witness for Valerie because “she should be able to testify to what [the State] need[ed] her to testify to . . . without relying on the outcry—or bringing in an outcry witness for that purpose.” 10 Defense counsel stated, “And just to clarify, Judge, right now when she was testifying, I will be having objections to hearsay if she does mention what [Amanda]—what [Valerie] was telling [Amanda] about this.” 36 __________________________________________ Rosa Lopez Theofanis, Justice
Before Justices Triana, Theofanis, and Crump
Affirmed
Filed: January 30, 2026
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Lonnie H. Mansolo v. the State of Texas, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lonnie-h-mansolo-v-the-state-of-texas-txctapp3-2026.