Miguel Chavez A/K/A Miguel Angel Chavez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 24, 2023
• Docket: 13-22-00551-CR
• Status: Published

Opinion

NUMBER 13-22-00551-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

MIGUEL CHAVEZ A/K/A MIGUEL ANGEL CHAVEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 206th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Longoria Memorandum Opinion by Justice Benavides

A jury convicted appellant Miguel Chavez of continuous sexual assault of a young

child, a first-degree felony; aggravated sexual assault of a child by contact, also a first-

degree felony; and indecency with a child by sexual contact, a second-degree felony. See TEX. PENAL CODE ANN. §§ 21.02(b)(2)(A), 22.021(a)(1)(B)(iv), 21.11(a)(1). On appeal,

Chavez contends that the jury charge for the continuous sexual abuse count contained

reversible error because the application paragraph lacked an essential element of the

offense. The State disagrees that the charge was erroneous but asks the Court to set

aside Chavez’s other convictions for aggravated sexual assault and indecency with a

child because they violate Chavez’s double jeopardy rights. We affirm the conviction for

continuous sexual abuse and vacate the other two convictions.

I. BACKGROUND

In 2019, Chavez was indicted for continuous sexual abuse of a child under the age

of fourteen for allegedly committing two or more acts of sexual abuse against Jennifer1

during a period that began on July 10, 2008, and ended on July 9, 2016. The indictment

generally alleged that the acts of sexual abuse included aggravated sexual assault of a

child and indecency with a child by sexual contact.

The indictment also included four additional counts against Chavez. Three of the

counts alleged different types of aggravated sexual assault against Jennifer. The last

count alleged Chavez committed indecency with a child by sexual contact by touching

Jennifer’s genitals. Each of these offenses was alleged to have been committed during

the period of continuous abuse alleged in the first count. Prior to trial, the trial court

granted the State’s motion to dismiss one of the counts of aggravated sexual assault.

At trial, Jennifer testified that the abuse began shortly after her family moved in

with Chavez in July of 2008, when Jennifer was six years old. Initially, the abuse only

1 To protect the identity of the complainant, we refer to her by the pseudonym given to her in the

indictment. See TEX. CODE CRIM. PROC. ANN. art. 58.102(a). 2 involved “touching.” Chavez would place his hands under Jennifer’s underwear and touch

her vagina. Jennifer said this happened “a lot” and “continued for years.” She also

described incidents where Chavez would rub his penis on her vagina, saying this type of

contact also happened multiple times and occurred over a period of years.

Although she could not recall her exact age when it first occurred, Jennifer testified

that when she “got older,” Chavez began placing his penis inside her vagina. She said

Chavez regularly forced her to have intercourse at times when her mother was not

present, including some mornings before she went to school. Though it occurred much

less frequently than the intercourse, she said that Chavez also forced her to perform

fellatio on more than one occasion. Lastly, Jennifer testified that Chavez would

sometimes rub his penis on her anus but that he never penetrated her anus. According

to Jennifer, the abuse finally stopped in July of 2016, when she was fourteen years old.

During the charge conference, the trial court presented the parties with a proposed

jury charge for the continuous sexual abuse offense that included the following application

paragraph:

Now if you find from the evidence beyond a reasonable doubt that the Defendant, MIGUEL CHAVEZ[,] 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 10th day of July, 2008, to on or about the 9th day of July, 2016, when the defendant was 17 years or age or older, committed two or more acts of sexual abuse against JENNIFER . . . , 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.

Chavez did not object to this paragraph, and the charge was submitted to the jury.2 The

2 Chavez did object to another portion of the jury charge; however, that objection was overruled,

and Chavez has not challenged that ruling on appeal. 3 jury also received separate charges on the two remaining counts of aggravated sexual

assault of a child and the single count of indecency with a child by sexual contact.

The jury returned guilty verdicts on the continuous sexual abuse offense, one of

the aggravated sexual assault offenses,3 and the indecency with a child by sexual contact

offense. The jury assessed corresponding punishments of twenty-five, five, and two

years’ confinement, and the trial court ordered the sentences to run concurrently. This

appeal ensued.

II. JURY CHARGE

Chavez contends that the application paragraph above was erroneous because it

eliminated the duration element by failing to specify that at least two acts of sexual abuse

had to occur thirty days or more apart.

A. Standard of Review & Applicable Law

A jury charge must instruct the jurors on the law that is applicable to the case. TEX.

CODE CRIM. PROC. ANN. art. 36.14. “Because the charge is the instrument by which the

jury convicts, it must contain an accurate statement of the law and must set out all the

essential elements of the offense.” Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim.

App. 2012) (cleaned up). A jury charge generally contains an abstract portion and an

application paragraph. “The abstract paragraphs serve as a glossary to help the jury

understand the meaning of concepts and terms used in the application paragraphs of the

charge.” Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012) (citing Plata v.

3 Chavez was acquitted of the other aggravated sexual assault offense, which alleged that Chavez

intentionally or knowingly caused Jennifer’s sexual organ to contact Chavez’s mouth. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii). 4 State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other grounds by Malik

v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997)). “The application paragraph is what

explains to the jury, in concrete terms, how to apply the law to the facts of the case.”

Yzaguirre v. State, 394 S.W.3d 526, 530 (Tex. Crim. App. 2013). To determine whether

jury charge error occurred, a reviewing court “must examine the charge as a whole

instead of a series of isolated and unrelated statements.” Vasquez, 389 S.W.3d at 366

(quoting Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995)).

To establish continuous sexual abuse of a young child, the State must prove four

elements: (1) the defendant “commit[ted] two or more acts of sexual abuse,” (2) “during

a period that is 30 or more days in duration,” and “at the time of the commission of each

of the acts of sexual abuse,” (3) the [defendant was] 17 years of age or older,” and (4) “the

victim [was] a child younger than 14 years of age.” TEX. PENAL CODE ANN. § 21.02(b). In

other words, “[t]o obtain a conviction for continuous sexual abuse of a child, the State

must show that the defendant committed at least two acts of sexual abuse against a child

younger than 14 years of age during a period of at least 30 days’ duration.” Ramos v.

State, 636 S.W.3d 646, 651 (Tex. Crim. App. 2021) (citing TEX. PENAL CODE ANN.

§ 21.02(b)).

B. Analysis

Relying on Smith v. State, 340 S.W.3d 41 (Tex. App.—Houston [1st Dist.] 2011,

no pet.), Chavez argues that the application paragraph permitted the jury to convict him

by finding that he committed two or more acts of sexual abuse, even if the acts occurred

less than thirty days apart. In Smith, the application paragraph permitted a conviction if

5 the jury found the defendant committed two 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.” Id. at 50 (emphasis added). The Smith

court found that the “precise phrasing in the application paragraph” lacked clarity

because, “read literally, it allowed the jury to find appellant guilty so long as two or more

acts of sexual abuse occurred between December 2007 and September 2008 regardless

of whether the acts occurred at least 30 days apart.” Id. As one of our other sister courts

later observed, the application paragraph in Smith was erroneous because it “merely

made the irrelevant observation that the period specified in the indictment—between

December 2007 and September 2008—was a time period that was thirty days or more in

duration.” Knowles v. State, No. 04-12-00180-CR, 2013 WL 1149063, at *4 (Tex. App.—

San Antonio Mar. 20, 2013, pet. ref’d) (mem. op., not designated for publication)

(distinguishing Smith and rejecting claim of jury charge error). The application paragraph

in Smith “did not require the jury to find, as the Penal Code requires, that the defendant

committed the specified acts ‘during a period that is 30 or more days in duration.’” Id.

We disagree with Chavez that the application paragraph in this case is analogous

to the application paragraph in Smith. Here, the application paragraph instructed the jury

to find Chavez guilty of the offense if it found beyond a reasonable doubt that Chavez,

during a period that was 30 or more days in duration, to-wit: from on or about the 10th day of July, 2008, to on or about the 9th day of July, 2016, when the defendant was 17 years or age or older, committed two or more acts of sexual abuse against JENNIFER.

Consequently, the charge expressly required a finding that Chavez, during a period that

was thirty or more days in duration, committed two or more acts of sexual abuse, and

6 thus reflects the language and structure of the offense as provided by the Penal Code.

See TEX. PENAL CODE ANN. § 21.02(b). We also disagree with Chavez’s suggestion that

by delineating the period of continuous abuse with specific dates that were themselves

more than thirty days apart, this language somehow nullified the immediately preceding

requirement that Chavez committed two or more acts of sexual abuse “during a period

that was 30 or more days in duration.” Id. Instead, the instruction merely “explain[ed] to

the jury, in concrete terms, how to apply the law to the facts of the case.” Yzaguirre, 394

S.W.3d at 530.

Chavez also observes that the trial court did not use the Texas Pattern Jury Charge

for this offense, which includes the following clarifying language: “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.” Comm. on Pattern Jury Charges—Criminal,

State Bar of Tex., Texas Criminal Pattern Jury Charges: Crimes Against Persons &

Property CPJC 84.2, 99 (2020). We note that Chavez did not request this additional

clarifying language. In any event, while certainly helpful, the Texas Pattern Jury Charges

are only advisory; that is to say, trial courts are not required to follow them. See Beltran

De La Torre v. State, 583 S.W.3d 613, 623 n.7 (Tex. Crim. App. 2019) (“part[ing] ways

with the recommendations of the Texas Committee on Pattern Jury Charges” on the

propriety of two of the committee’s instructions); see also Williams v. State, No. 02-20-

00104-CR, 2021 WL 5227167, at *5 (Tex. App.—Fort Worth Nov. 10, 2021, no pet.)

(mem. op., not designated for publication) (observing that Texas Pattern Jury Charges

are not binding on the trial court). We are not aware of any authority, and Chavez does

7 not cite to any, holding that this clarifying language is required. The trial court’s only

obligation is to accurately instruct the jury on the law applicable to the case. TEX. CODE

CRIM. PROC. ANN. art. 36.14. The trial court did so here by tracking the language in the

statute, and “[f]ollowing the law as it is set out by the Texas Legislature will not be deemed

error on the part of the trial judge.” Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim.

App. 1996). We overrule Chavez’s issue.

III. DOUBLE JEOPARDY

The State has asked us to set aside Chavez’s convictions for aggravated sexual

assault of a child and indecency with a child by sexual contact because they violate

Chavez’s double jeopardy rights.

A. Applicable Law

The Double Jeopardy Clause of the Fifth Amendment, which is applicable to the

states through the Fourteenth Amendment, protects a person from multiple punishments

for the same offense. U.S. CONST. amends. V, XIV; Garfias v. State, 424 S.W.3d 54, 58

(Tex. Crim. App. 2014). “In the multiple-punishments context, two offenses may be the

same if one offense stands in relation to the other as a lesser-included offense, or if the

two offenses are defined under distinct statutory provisions but the Legislature has made

it clear that only one punishment is intended.” Littrell v. State, 271 S.W.3d 273, 275–76

(Tex. Crim. App. 2008).

“To obtain a conviction for continuous sexual abuse of a child, the State must show

that the defendant committed at least two acts of sexual abuse against a child younger

than 14 years of age during a period of at least 30 days’ duration.” Ramos, 636 S.W.3d

8 at 651 (citing TEX. PENAL CODE ANN. § 21.02(b)). Aggravated sexual assault of a child is

among the predicate offenses listed as an “act of sexual abuse.” TEX. PENAL CODE ANN.

§ 21.02(c)(4). So is indecency with a child by sexual contact other than by touching the

breast of the child. Id. § 21.02(c)(2).

Dual convictions for continuous sexual abuse and a predicate offense are

prohibited under certain circumstances. Id. § 21.02(e). “A defendant charged with

continuous sexual abuse who is tried in the same criminal action for an enumerated

offense based on conduct committed against the same victim may not be convicted for

both offenses unless the latter offense occurred outside the period of time in which the

continuous-sexual-abuse offense was committed.” Price v. State, 434 S.W.3d 601, 606

(Tex. Crim. App. 2014) (interpreting § 21.02(e)). Simply put, “the Legislature did not

intend to permit dual convictions for continuous sexual abuse and for an enumerated act

of sexual abuse unless the latter occurred during a different period of time.” Id.

As the State acknowledges, Chavez’s convictions for aggravated sexual assault

of a child by contact and indecency with a child by sexual contact constituted acts of

sexual abuse that Chavez committed against Jennifer during the period of continuous

abuse alleged in the indictment, which spanned from July 10, 2008, until July 9, 2016.

Specifically, the jury found that the indecency offense, which involved Chavez touching

Jennifer’s genitals, occurred “on or about the 10th day of July, 2008,” thus beginning the

period of continuous abuse. The jury also found that the aggravated sexual assault

occurred “on or about the 1st day of January, 2010,” long before the period of continuous

9 abuse concluded in 2016. Accordingly, we agree with the State that the Legislature did

not intend for Chavez to be convicted separately for all three crimes. See TEX. PENAL

CODE ANN. § 21.02(e); Price, 434 S.W.3d at 606.

C. Remedy for Double Jeopardy Violations

When a multiple-punishment violation occurs, “the remedy is to affirm the

conviction for the most serious offense and vacate the other convictions.” Bigon v. State,

252 S.W.3d 360, 372 (Tex. Crim. App. 2008). Generally, the most serious offense is “the

offense in which the greatest sentence was assessed.” Id. at 373. Here, the greatest

punishment assessed was for the continuous sexual abuse conviction. Therefore, we

retain that conviction and vacate the other two convictions. See id.

IV. CONCLUSION

We affirm the conviction for continuous sexual abuse of a young child and vacate

the convictions for aggravated sexual assault of a child and indecency with a child by

sexual contact.

GINA M. BENAVIDES Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed on the 24th day of August, 2023.