Santos Joel Flores Jr. v. State

Opinion

NUMBER 13-12-00606-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

SANTOS JOEL FLORES JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 389th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Longoria Memorandum Opinion by Justice Rodriguez Appellant Santos Joel Flores Jr. was indicted on August 9, 2011 in seven counts

as follows: Count 1, continuous sexual abuse of a child, see TEX. PENAL CODE ANN. §

21.02 (West, Westlaw through 2013 3d C.S.); Counts 2 and 5, sexual assault of a child, see id. § 22.011(a)(2) & (c)(1) (West, Westlaw through 2013 3d C.S.); and Counts 3,

4, 6, and 7, indecency with a child by contact. See id. § 21.11(a) (West, Westlaw

through 2013 3d C.S.). A jury found Flores guilty of: Count 1 and sentenced him to

forty years imprisonment in the Institutional Division of the Texas Department of

Criminal Justice (ID–TDCJ); Counts 2 and 5 and sentenced him to ten years in the ID–

TDCJ for each count; and Counts 3, 4, 6, and 7 and sentenced him to two years in the

ID–TDCJ for each count. The trial court ordered the sentences to run concurrently.

As to Count 1, Flores contends by his first two issues that: (1) applying Malik

v. State to affirm the judgment of conviction for the offense of continuous sexual abuse

of a child would violate due process, see 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)

(en banc); and (2) the trial court committed egregious harm when a charge error altered

the statutory time limits of section 21.02 of the penal code. See TEX. PENAL CODE ANN.

§ 21.02(b). As to all counts, Flores complains by his third and fourth issues that: (1)

his Sixth Amendment rights were violated when the State invaded the province of the

jury to determine the credibility of witnesses; and (2) trial counsel was ineffective when

he failed to object to the State’s questions regarding the credibility of witnesses.

Finally, Flores asserts by his fifth issue that the judgments in Counts 2 through 7 violate

the Double Jeopardy Clause of the Fifth Amendment because those counts are lesser-

included offenses of Count 1. See U.S. CONST. amend. V. We affirm.

I. JURY CHARGE ERROR

In his first issue, Flores contends that our review of his conviction for the

continuous sexual abuse of a child (Count 1) under Malik would violate his federal due

2 process rights because United States Supreme Court precedent mandates that the

jury, not the appeals court, must make fact findings on all essential elements of the

charged offense. He argues that because the trial court did not submit the issue of

the child's age—a necessary element to the offense of continuous sexual abuse of a

child—to the jury, the jury was unable to convict him on that offense beyond a

reasonable doubt. See TEX. PENAL CODE ANN. § 21.02. By his second issue, Flores

asserts that, as to Count 1, error resulted when the charge altered the limits of section

21.02 of the penal code and resulted in egregious harm.

The State responds arguing that while Flores appears to be alleging that the

evidence is not sufficient and that any review using a hypothetically correct jury charge

is improper, he does not make an actual claim that the evidence is insufficient.

Because there is no sufficiency challenge, the State claims that Flores’s challenge of

Malik is either premature or moot. The State also reminds this Court that as an

intermediate court we do not have the authority to provide the relief sought, i.e.,

overrule Malik.

A. The Constitutional Issue

We agree that even if we were to construe Flores's argument as a challenge to

the constitutionality of Malik, as an intermediate court we are bound to follow the

decisions of the court of criminal appeals and have no authority to change the current

standard of review. See Wiley v. State, 112 S.W.3d 173, 175–76 (Tex. App.—Fort

Worth 2003, pet. ref'd); see also Cedillo v. State, No. 13-03-00689-CR, 2006 WL

1791580, at *1 (Tex. App.—Corpus Christi June 29, 2006, pet. ref’d) (mem. op., not

3 designated for publication). Also, because this Court has previously considered this

argument and rejected it and because Flores’s first two issues are premised on jury

charge error, we will, as we did in Cedillo v. State, address them together under

Almanza v. State and its progeny. See 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)

(en banc) (op. on reh’g); see also Cedillo v. State, No. 13-03-00689-CR, 2006 WL

1791580, at *1 (Tex. App.—Corpus Christi June 29, 2006, pet. ref’d) (mem. op., not

designated for publication) (concluding that appellant’s due process argument did not

implicate the issue of sufficiency of the evidence under Malik, but instead constituted

a jury charge error). Finally, we will reach the constitutional issues only if the case

may not be decided on any other ground. See Pena v. State, 191 S.W.3d 133, 136–

38 (Tex. Crim. App. 2006) (discussing need to avoid “adjudication of constitutional

issues when at all possible”); see also Valero Refining—Tex. L.P. v. State, 203 S.W.3d

556, 563 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (rejecting constitutional

challenge based on “hypothetical analysis” and noting appellant did not bring forth

sufficient record to show the facts surrounding his conduct to support a constitutional

violation). Because we decide this issue on whether there was charge error and

whether error, if any, was egregious, we do not reach the constitutional issue.

B. Standard of Review and Applicable Law

In analyzing a jury charge issue, our initial inquiry is whether error exists in the

charge submitted to the jury. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App.

2005) (en banc); Almanza, 686 S.W.2d at 171. If we find error, the degree of harm

necessary for reversal depends on whether the appellant preserved the error by

4 objection. Ngo, 175 S.W.3d at 743. If the defendant properly objected to the

erroneous jury charge, reversal is required if we find “some harm” to the defendant's

rights. Id. (citing Almanza, 686 S.W.2d at 171). If no objection was made, as in this

case, we may only reverse if the record shows egregious harm. Id. at 743–44.

“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.’”

Cueva v. State, 339 S.W.3d 839, 858–59 (Tex. App.—Corpus Christi 2011, pet. ref'd)

(quoting Ngo, 175 S.W.3d at 750); see Stuhler v. State, 218 S.W.3d 706, 719 (Tex.

Crim. App. 2007). When conducting an egregious harm analysis the reviewing court

examines the record as a whole, including (1) the remainder of the charge; (2) the

evidence, including contested issues and the weight of the probative evidence; and (3)

the arguments of counsel. Stuhler, 218 S.W.3d at 719.

A person commits the offense of continuous sexual abuse of a young child if,

during a period of thirty or more days, the person commits two or more acts of sexual

abuse. See TEX. PENAL CODE ANN. § 21.02(b)(1). At the time of each act of sexual

abuse, the actor must be seventeen years of age or older, and the victim must be

younger than fourteen. Id. § 21.02(b)(2). An “act of sexual abuse” is an act that

violates one or more specified penal laws, among them indecency with a child by

contact, aggravated sexual assault of a child, sexual assault of a child, and sexual

performance by a child. Id. § 21.02(c).

“Section 21.02 . . . became effective September 1, 2007, and it does not apply

to an offense committed before that date.” Martin v. State, 335 S.W.3d 867, 873 (Tex.

5 App.—Austin 2011, pet ref’d) (citing Act of May 18, 2007, 80th Leg., R.S., ch. 593, §§

1.17, 4.01(a), 2007 Tex. Gen. Laws 1120, 1127, 1148). “An offense is committed

before the effective date of the statute if any element of the offense occurs before that

date.” Id. Finally, “[i]t is a longstanding rule that the State is not required to prove

that an offense was committed on the date alleged in the indictment (whether or not

the words ‘on or about’ are used) but may prove that the offense was committed on

any date prior to the return of the indictment and within the period of limitations.” Id.

(citing Klein v. State, 273 S.W.3d 297, 304 n.5 (Tex. Crim. App. 2008)).

C. Background1

In this case, Count 1 of the indictment charged appellant with continuous sexual

abuse of a child. See TEX. PENAL CODE ANN. § 21.02. The indictment reflected the

limits of section 21.02 in this case, alleging that the period of abuse occurred “on or

about the 1st day of September 2007 [the effective date of the statute] through on or

about the 30th day of July A.D., 2009 [the complainant’s fourteenth birthday].”

Mirroring the indictment, the application paragraph of the Count 1 jury charge,

Paragraph 5, set out the following:

Now if you find from the evidence beyond a reasonable doubt that on or about SEPTEMBER 1, 2007 through on or about JULY 30, 2009, in Hidalgo County, Texas, the Defendant, SANTOS JOEL FLORES, JR., during a period that was 30 days or more in duration, committed two or more acts of sexual abuse against [J.F. 2 ], said acts of sexual abuse

1 Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4. 2 To protect the child's privacy, we refer to the child by her initials. See TEX. R. APP. P. 9.8; see also TEX. CODE CRIM. PROC. ANN. art. 57.02(h) (West, Westlaw through 2013 3d C.S.).

6 having been violations of one or more of the following penal laws, including: aggravated sexual assault of a child by intentionally or knowingly causing the penetration of the sexual organ of [J.F.] by defendant’s sexual organ, sexual assault of a child by intentionally or knowingly causing the sexual organ of [J.F.] to contact the mouth of the defendant, indecency with a child by contact by [sic], with intent to arouse or gratify the sexual desire of the defendant, engage in sexual contact with [J.F.], by touching part of the genitals of [J.F.], indecency with a child by contact by [sic], with intent to arouse or gratify the sexual desire of the defendant, engage in sexual contact with [J.F.], by causing [J.F.] to touch the sexual organ of the defendant, and each of the aforementioned acts of sexual abuse were committed on more than one occasion, and at the time of the commission of each of the acts of sexual abuse, the defendant was 17 years of age or older and [J.F.] was a child younger than 14 years of age, then you will find the defendant guilty of the offense of [c]ontinuous [s]exual [a]buse of a [c]hild as charged in the indictment.

Paragraph 6, the instruction paragraph, provided the following:

You are instructed that the allegation that the offense was committed on or about SEPTEMBER 1, 2007 through on or about JULY 30, 2009, does not bind the State to any one particular date but may include any day prior to AUGUST 9, 2011, the day the indictment was filed. There is no statute of limitations for [c]ontinuous [s]exual [a]buse of a [c]hild.

Flores did not object to the Count 1 charge.

D. Discussion

Flores asserts that the trial court submitted a fundamentally flawed jury charge.

Specifically, he contends that the language in the instruction that sets out the jury “may

include any day prior to August 9, 2011, the day the indictment was filed” altered the

statutory requirements of section 21.02. He claims that this language allowed for the

consideration of incidences that occurred prior to September 1, 2007, the effective date

of the statute, and incidences that occurred after July 31, 2009, when J.F. turned

7 fourteen.3

1. Fourteenth-Birthday Challenge

Regarding events that took place after J.F.’s fourteenth birthday, the charge set

out, in relevant part, that a person commits continuous sexual abuse of a child if “at

the time of the commission of each of the acts of sexual abuse . . . the victim is a child

younger than 14 years of age.” The application paragraph for Count 1 required the

jury to find that “at the time of the commission of each of the acts of sexual abuse

. . . [J.F.] was a child younger than 14 years of age.” The jury also knew from the

evidence that J.F. was born on July 31, 1995 and turned fourteen on July 31, 2009.

At trial J.F. testified extensively regarding acts of sexual abuse by Flores, her

father, beginning when she was nine or ten years old and in the fifth or sixth grade and

continuing until she was fifteen and in the eighth or ninth grade. She testified the

conduct began after her parents were divorced and Flores moved in with her uncle.

J.F. was nine or ten years of age and in either the fifth or the sixth grade at that time.

The conduct continued for approximately two or three years. When J.F. was “around

12,” the conduct stopped “for several months” while Flores lived with Nereida, an ex-

girlfriend. However, according to J.F., when Flores moved from Nereida’s home to

the home of another ex-girlfriend, Jessie, the conduct resumed and continued while he

lived there for approximately two years. From this testimony, the jury could have

determined that J.F. was twelve and thirteen years of age at this time. J.F. also

3 Flores also generally contends that the charge error and the State’s closing argument discussed later created a serious probability of a non-unanimous jury verdict. However, this contention is inadequately briefed because Flores does not provide a clear and concise argument for this contention “with appropriate citations to authorities and to the record.” See TEX. R. APP. P. 38.1(i). 8 testified that when she was fourteen, Flores moved to Joanne’s home, where the abuse

continued for about a year. Finally, according to J.F., when she was fifteen and in the

eighth or ninth grade, the abuse stopped when Flores moved into Vivian’s house.

In review, as to Flores’s claim that this non-binding language in the instruction

paragraph of the Count 1 charge allowed for the consideration of incidences that

occurred after July 31, 2009, when J.F. turned fourteen, the charge instructed the jury

that the offense of continuous sexual abuse of a child applies only to children younger

than fourteen years of age. The application paragraph for Count 1 required the jury

to find that J.F. was younger than fourteen when the acts of abuse occurred. The jury

knew from the evidence that J.F. turned fourteen on July 31, 2009. Thus, as the

Austin Court reasoned in Martin, notwithstanding the trial court’s instruction that the

State was not bound by any particular date but only by the date that the indictment was

filed, the jurors were required to find that the period of continuous sexually abusive

conduct occurred before J.F.’s fourteenth birthday in order to convict Flores under

Count 1. See 335 S.W.3d at 874. Therefore, considered as a whole, we conclude

that the court’s Count 1 charge was not erroneous in this respect. See id.

2. Effective-Date-of-Statute Challenge

However, “a person cannot be punished as a criminal for conduct that was

innocent when done.” Id. at 876 (citing Collins v. Youngblood, 497 U.S. 37, 42–44

(1990); Rodriguez v. State, 93 S.W.3d 60, 66 (Tex. Crim. App. 2002)). In this case,

the jury could not have convicted Flores of conduct that occurred prior to September

1, 2007, the effective date of the statute. More specifically, it was error when the

9 Count 1 charge failed to qualify the instruction regarding the nonbinding nature of the

alleged dates by (1) requiring the jury to find that the offense alleged in Count 1 had to

have been committed on or after September 1, 2007; or (2) directing the jurors not to

convict Flores under Count 1 based on a finding of sexually abusive conduct prior to

September 1, 2007. See id. at 874. Because the trial court’s unqualified instruction

“‘present[ed] the jury with a much broader chronological perimeter than is permitted by

law’” with respect to Count 1 and pre-September 1, 2007 conduct, we agree with Flores

and the State that the charge was erroneous in this respect. See id. (quoting Taylor

v. State, 332 S.W.3d 483, 488–89 Tex. Crim. App. 2011)).

In addition, the State’s closing statement included, in relevant part, the following:

Now in this case we have—we have seven different counts. Count 1 was continuous sexual abuse of a child. Counts 2 and 5 were sexual assault of a child, and the rest of the counts were indecency with a child by contact.

Now in each one there's a little bit—paragraphs that I kind of want to clarify for you guys, so that way there is no question as to what y'all's job is when you go back to deliberate. First, age. In Count 1 we have to prove that the defendant was 17 years or older and that the victim was under the age of 14, and we did that.

If you remember the testimony from [J.F.] herself, she told you that when the first time this started happening she was around 9 or 10 years old and the defendant was somewhere in his 20s. That's for Count 1. The rest of the counts, all we had to prove was that the victim, [J.F.], was under the age of 17. And if you remember what she said, she said this started back probably, roughly, around 2006, when she was 9, all the way up until she was 15 years old.

The next thing I want to bring to your attention, the "on or about" language on the dates of all the different counts. If you remember, the Judge said "on or about" and then she gave you the date. Well, what that means is that the State is not bound by specific date in particular. That just means that it is, roughly, around that period of time. 10 So, if you remember, in Count 1, the Judge read to you that the allegation that the offense was committed on or about September 1st, 2007, all the way through July 30th, 2009, and any time before this indictment was filed, which was on August 9th, 2011. Now, what does that mean?

That just basically means that you do not have to prove a specific date that each offense occurred. As long as it was within that period of time, from on or around September 1st, 2007, all the way up to August 9th, 2011, as long as we prove that those allegations and those charges fell within that period of time, we have met our burden.

As in Martin, while this closing statement reminded the jurors that the State was not

required to prove the exact dates alleged, it specifically told the jurors that Count 1 was

concerned with continuous sexual abuse committed before J.F.’s fourteenth birthday.

See 335 S.W.3d at 875. However, as in Martin, the State’s argument failed to inform

the jurors that Count 1 did not encompass Flores’s sexually abusive conduct before

September 1, 2007, when the statute became effective. See id.

Nonetheless, being guided by the reasoning of our sister court, we conclude

that the charge error was not egregiously harmful. See id. Although the jury could

not lawfully convict Flores for continuous sexual abuse based on his conduct prior to

September 1, 2007, the jury could consider that conduct as circumstantial evidence of

Flores’s conduct between September 1, 2007 and J.F.’s fourteenth birthday. See id.

(citing TEX. CODE CRIM. PROC. ANN. art. 38.37 (West Supp. 2010)). And Flores’s

defense, as in Martin, was that the complainant’s testimony was not credible and that

no acts of sexual abuse occurred. See id. If the jurors believed J.F., which it is clear

that they did, it is unlikely that they believed the sexually abusive acts only occurred

before September 1, 2007. See id. The evidence supports a finding beyond a 11 reasonable doubt that Flores committed two or more acts of sexual abuse against J.F.

during a period of thirty or more days beginning on or after September 1, 2007 and

ending no later than her fourteenth birthday. See id. J.F. testified that when she was

twelve and thirteen years old and when Flores lived at Jessie’s house, she would go

to visit him every week or every other week. At this time, the statute was in effect.

According to J.F., Flores always took her “to his room and to the restroom, and he put

his penis in [her] mouth and in [her] vagina and in [her] butt,” and it happened “a lot of

times.” This testimony alone is sufficient to support Flores’s conviction under Count

1. See id. Thus, the jurors could have lawfully convicted Flores for continuous

sexual abuse of a child even if it had been properly instructed not to base a conviction

of Flores’s conduct prior to September 1, 2007. See id.

In sum, the evidence of Flores’s sexually abusive conduct before September 1,

2007 could be considered by the jury as circumstantial proof of his conduct after that

date. And there is sufficient evidence of Flores’s sexually abusive conduct after

September 1, 2007 to support his conviction under Count 1. Therefore, having

considered the error in light of the remainder of the charge, the argument of counsel,

and the state of the evidence, we conclude that the error did not cause Flores

egregious harm. See Stuhler, 218 S.W.3d at 619; Cueva, 339 S.W.3d at 858–59.

We overrule Flores’s first and second issues.

II. PROSECUTORIAL MISCONDUCT

By his third issue, Flores complains of prosecutorial misconduct as to all counts.

He argues that the State violated his constitutional rights when the prosecutor asked

12 him whether certain prosecutorial witnesses lied. Flores asserts that he was deprived

of a fair trial because through this line of questioning the prosecutor made him look

bad in front of the jury. He also claims that the prosecutor’s questions invaded the

province of the jury to determine the credibility of witnesses and the weight to be given

their testimony.

“The proper method of preserving error in cases of prosecutorial misconduct is

to (1) object on specific grounds, (2) request an instruction that the jury disregard the

comment, and (3) move for a mistrial.” Ajar v. State, 176 S.W.3d 554, 565–67 (Tex.

App.—Houston [1st Dist.] 2004, pet. ref’d) (citing Penury v. State, 903 S.W.2d 715,

764 (Tex. Crim. App. 1995) (en banc) (per curiam); Cook v. State, 858 S.W.2d 467,

473 (Tex. Crim. App. 1993) (en banc)). In this case, Flores did not object to any error

based on prosecutorial misconduct. By failing to object on this theory at trial, Flores

has preserved nothing for our review. See Perkins v. State, 902 S.W.2d 88, 96 (Tex.

App.—El Paso 1995, writ ref'd). We overrule Flores’s third issue.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

As to all counts, Flores contends by his fourth issue that his trial counsel was

ineffective when he failed to object to the State’s questions regarding the credibility of

witnesses. Flores complains of the following exchange that occurred when the State

cross-examined him:

Q. And you heard [your wife’s] testimony when she said that your response was, “What did [J.F.] tell you?” Without her even mentioning [J.F.’s] name, that was your response to her. Do you remember her saying that?

A. Can I say the truth? 13 Q. I’m asking you: Do you remember her saying that?

A. Well, yeah, I heard her say that.

Q. And your response to that, without her even having to say—to say anything about [J.F.], was, you knew that it had something to do with all the rape going on, correct?

A. It was a text to me.

Q. So, it was what was said, but through text message?

A. And it wasn’t that, what you are saying. You weren’t there, so it was me and her only.

Q. So your wife . . . was lying.

A. Yes, sir, she was lying.

Q. And speaking of text messages, did you ever text your wife or try to get ahold of [J.F.] saying that none of this was her fault?

A. No.

....

Q. You never did try to relay that message to [J.F.]?

A. No. It was for somebody else, but no, not for [J.F.].

Q. So your wife . . . is a liar?

A. Yes, sir, she’s lying.

Q. Now, did [A.F, your son] also lie?

Q. Because awhile ago, when [your counsel] was asking you questions, [A.F.] came in here and he told this jury that he had noticed strange things in retrospect, thinking back; he thought that it was strange that you would always take [J.F.] into the room alone and close the door. 14 A. Your question—

Q. Not just once but several times—

A. What’s your question?

Q. —and just the two of y’all.

Q. Is he lying?

A. Yes, he is.

Q. So he is a liar, even though just a second ago you said he was not a liar?

A. About—we were talking about the phone first; but you took it to the other thing, so, yes.

Q. So sometimes he’s a liar, and sometimes he’s not?

A. About the incidents, yes, not about the phone.

Q. So [your wife] is a liar and [A.F.] is a liar?

A. Yes.

A. Standard of Review

We apply a well-established, two-pronged test to ineffective assistance of

counsel claims. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v.

State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d 768,

771 (Tex. Crim. App. 1994) (en banc). First, appellant must show that his counsel's

performance was deficient; second, appellant must show the deficient performance

prejudiced the defense. Strickland, 466 U.S. at 687.

In evaluating the effectiveness of counsel under the first prong, we look to the 15 totality of the representation in the particular circumstances of each case. Thompson,

9 S.W.3d at 813. The issue is whether counsel's assistance was reasonable under

all the circumstances and prevailing professional norms at the time of the alleged error.

Strickland, 466 U.S. at 688–89. An allegation of ineffective assistance must be firmly

grounded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness. Thompson, 9 S.W.3d at 814. However, in the majority of instances,

the record on direct appeal is simply undeveloped and cannot adequately reflect the

failings of trial counsel. Id. at 813–14. Also, “in the absence of evidence of counsel's

reasons for the challenged conduct, an appellate court commonly will assume a

strategic motivation if any can possibly be imagined,” and we “will not conclude the

challenged conduct constituted deficient performance unless the conduct was so

outrageous that no competent attorney would have engaged in it.” Garcia v. State,

57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (internal quotations omitted).

The second prong of Strickland requires a showing that counsel's errors were

so serious that they deprived the defendant of a fair trial, i.e., a trial whose result is

reliable. Strickland, 466 U.S. at 687. In other words, appellant must show there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different. Id. at 694. A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Id. The ultimate focus

of our inquiry must be on the fundamental fairness of the proceeding whose result is

being challenged. Id. at 697. “Finally, an appellant's failure to satisfy one prong of

the Strickland test negates a court's need to consider the other prong.” Garcia, 57

16 S.W.3d at 440 (citing Strickland, 466 U.S. at 697).

B. Discussion

For an undetermined reason, Flores’s trial counsel did not object to the

challenged questioning. The State asserts that counsel’s apparent trial strategy was

to show that the charges against Flores were false. Trial counsel’s voir dire and his

opening and closing statements support this assertion. So it could have been

counsel’s trial strategy not to object because this line of questioning was within his

overall strategy. See id.

Because trial counsel has not had an opportunity to articulate his strategy and

because the record is silent as to any explanation for trial counsel’s actions, we

conclude that Flores’s has failed to rebut the presumption that this was a reasonable

decision. See Thompson, 9 S.W.3d at at 814. And in the absence of evidence of

counsel's reasons for the challenged conduct we assume a strategic motivation as the

State asserts and conclude that counsel’s performance was not so outrageous that no

competent attorney would have engaged in it and so was not deficient. See id.

Having concluded that Flores has not satisfied the first prong of the Strickland

test, we need not consider the second prong. See id. (citing Strickland, 466 U.S. at

697). Nonetheless, even if we were to conclude that trial counsel’s performance was

deficient, Flores cannot show that he was deprived of a fair trial. “Under Texas

precedent . . . improper veracity questions are generally held harmless because they

merely emphasize the obvious: that the defendant disagrees with the State's

witnesses' factual assertions.” Temple v. State, 342 S.W.3d 572, 615 (Tex. App.—

17 Houston [14th Dist.] 2010), aff'd, 390 S.W.3d 341 (Tex. Crim. App. 2013) (reviewing

improper-veracity-question cases). For example, in Creech v. State, the Texas Court

of Criminal Appeals held that while it is not proper for an attorney to question a

defendant about the truthfulness of another witness's testimony, it is not harmful

because it merely highlights that a defendant believes his version of events rather than

the State’s version. 329 S.W.2d 290, 291 (Tex. Crim. App. 1959) (“[W]hen the

appellant said that the officer was lying, he was merely saying that his version of the

affair was correct and that of the officer incorrect. We see nothing in such answer

which would tend to bring him into disrepute with the jury.”); see also Salcido v. State,

342 S.W.2d 760, 762 (Tex. Crim. App. 1961) (per curiam) (holding that overruling the

defendant's objection to a question asking him on cross-examination whether a witness

to the contrary had told the truth was harmless error, even though the objection should

have been sustained). In this case, although it was not proper for the prosecutor to

ask Flores about the truthfulness of the testimony of his wife and his son, it was not

harmful because it merely highlighted that Flores believed his version of events rather

than the State’s version. See Creech, 329 S.W.2d at 291; see also Salcido, 342

S.W.2d at 762. We conclude Flores has failed to prove either prong of Strickland.4

We overrule his fourth issue.

IV. DOUBLE JEOPARDY

4 Flores is not foreclosed from presenting his claim via collateral attack by virtue of an

application for post-conviction writ of habeas corpus. See Ex parte Nailor, 149 S.W.3d 125, 130–31 (Tex. Crim. App. 2004).

18 By his fifth issue, Flores contends that the judgments of conviction for sexual

assault of a child (Counts 2 and 5) and indecency with a child by contact (Counts 3, 4,

6, and 7) violate the Double Jeopardy Clause, because the offenses for which he was

found guilty are lesser-included offenses of Count 1, continuing sexual abuse of a child.

Flores premises his argument on the instructive language in Paragraph 6 of the Count

1 Charge that is set out in full in Section I.B. above. Flores reasons that this language

“does not bind the State to any one particular date but may include any day prior to

AUGUST 9, 2011, the day the indictment was filed,” and, therefore, Count 1 became

the same offense as those charged in Counts 2 through 7. Flores claims that his

double-jeopardy claim is apparent on the face of the record because the language of

Paragraph 6 of the Count 1 charge opened the door to purported offenses for Count 1

that went well beyond the limitation of section 21.02, making the offenses for which he

was convicted under Counts 2 through 7 lesser-included offenses.

A. Applicable Law

The Double Jeopardy Clause of the Fifth Amendment “prohibits the State from

putting a defendant in jeopardy twice for the same offense.” Hill v. State, 90 S.W.3d

308, 313 (Tex. Crim. App. 2002) (en banc) (citing Arizona v. Washington, 434 U.S.

497, 503 (1978); Alvarez v. State, 864 S.W.2d 64, 65 (Tex. Crim. App. 1993) (en

banc)); see U.S. CONST. amend. V. Specifically, it protects persons against multiple

punishments for the same offense. Gonzales v. State, 304 S.W.3d 838, 845 (Tex.

Crim. App. 2010). “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

19 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). “Sameness in this context is a matter of legislative

intent.” Id. at 276. When an appellant does not raise a double jeopardy claim in the

trial court, as here, he must show that any double jeopardy violation is apparent on the

face of the record. See Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim. App. 2006);

Gonzalez v. State, 8 S.W.3d 640, 642–45 (Tex. Crim. App. 2000) (en banc).

Here, the jury returned a verdict of guilty on Count 1, the offense of continuous

sexual abuse of a child. We have already concluded that there was no error regarding

the restriction of J.F.’s fourteenth birthday in the Count 1 charge. And we have

determined that despite the trial court’s instruction, the jurors were required to find that

the period of continuous sexually abusive conduct occurred before July 31, 2009, J.F.’s

fourteenth birthday, in order to convict Flores under Count 1. Flores now asserts that

the remaining offenses for which he was convicted are lesser-included offenses of

Count 1.

Within section 21.02, the Legislature included the following relevant language

expressing its intent regarding multiple punishments for continuous sexual abuse:

(e) A defendant may not be convicted in the same criminal action of an offense listed under Subsection (c)[, which includes indecency with a child by contact and sexual assault of a child,] the victim of which is the same victim as a victim of the offense alleged under Subsection (b) [continuous sexual abuse of a child] unless the offense listed in Subsection (c):

.... 20 (2) occurred outside the period in which the offense alleged under Subsection (b) was committed . . . .

Id. § 21.02(e)(2). Based on this language, it appears the Legislature did not intend to

allow a defendant convicted of continuous sexual abuse to also be convicted for the

sexual assault of or indecency with the same child if the sexual assault or indecency

at issue and the continuous sexual abuse occurred within the same time periods. See

id. § 21.02(c)(2 & 4), (e); Littrell, 271 S.W.3d at 276. However, based on this

language, it appears the Legislature did intend to allow a defendant convicted of

continuous sexual abuse to be convicted for sexual assault of or indecency with the

same child if the sexual assault or indecency at issue occurred outside the period in

which the continuous sexual abuse occurred. See TEX. PENAL CODE ANN. § 21.02(c)(2

& 7), (e)(2); Littrell, 271 S.W.3d at 276.

In this case, Count 2 involved the charge of sexual assault of a child alleged to

have been committed on or about September 1, 2009; Count 3, indecency with a child

on or about September 10, 2009; Count 4, indecency with a child on or about

September 10, 2009; Count 5, sexual assault of a child on or about December 1, 2010,

Count 6, indecency with a child on or about November 30, 2010; and Count 7,

indecency with a child on or about November 30, 2010. J.F. turned fourteen on July

31, 2009. J.F. testified to numerous incidents of sexual contact and penetration that

occurred during the year that Flores lived with Joanne. According to J.F., her first

visitation with Flores at Joanne’s house was when she was fourteen years old. So all

offenses in Counts 2 through 7 occurred outside the period in which the offense of

21 continuous sexual abuse of a child in Count 1 occurred. See TEX. PENAL CODE ANN.

§ 21.02(e). Flores has not shown that any double jeopardy violation is apparent on

the face of the record. See Langs, 183 S.W.3d at 687; Gonzalez, 8 S.W.3d at 642–

45. We overrule Flores fifth issue.

V. CONCLUSION

We affirm the judgments of the trial court.

NELDA V. RODRIGUEZ Justice

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

Delivered and filed the 17th day of April, 2014.