Hernandez-Silva v. State

Jose Hernandez-Silva, Appellant v. The State of Texas, Appellee

NO. 03-19-00219-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

August 14, 2020

FROM THE 426TH DISTRICT COURT OF BELL COUNTY

NO. 76736, THE HONORABLE FANCY H. JEZEK, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted appellant Jose Hernandez-Silva of the offense of continuous sexual abuse of a child and assessed his punishment at 75 years' imprisonment. See Tex. Penal Code § 21.02. The district court rendered judgment on the verdict. In three issues on appeal, Hernandez-Silva asserts that the district court erred in denying his motion to quash the indictment, that his conviction violated the prohibition against ex post facto laws, and that multiple errors in the jury charge caused him egregious harm. We will affirm the judgment of conviction.

BACKGROUND

The State alleged that Hernandez-Silva, between on or about September 2, 2007, and on or about April 1, 2011, when he was 17 years of age or older, during a period of 30 or more days in duration, committed two or more acts of sexual abuse against a child younger than 14 years of age. The victim in the case, TLP,¹ testified that the abuse began in 2005, when she was eight years old and in third grade.² TLP explained that at that time, she lived on Lucille Drive in Killeen with her mother, brother, and Hernandez-Silva, her stepfather. The first instance of abuse occurred when she and Hernandez-Silva "were playing around" inside their house, he was chasing her, and he grabbed her breast and her vagina over her clothing. On other occasions, Hernandez-Silva would "smack [her] butt" when TLP walked around the house and, when TLP was washing dishes, he would "stand behind [her] and rub his penis against [her] butt." TLP further testified that when she wanted to play outside, Hernandez-Silva would touch her breasts and force her to touch his penis before he would allow her to do so.

The abuse continued when TLP was in fourth grade. TLP testified that during that time, she "got [her] first period" and Hernandez-Silva "told [her] that things were going be to be different from now on." Hernandez-Silva began touching TLP's breasts and her vagina underneath her clothing and, on one occasion when TLP's mother was not at home, had sexual intercourse with her, penetrating her vagina with his penis.

In September 2007, when TLP was ten years old and in fifth grade, the family moved to New York for four months. TLP testified that during this time, Hernandez-Silva forced her to have sexual intercourse with her on multiple occasions as "payment" in exchangefor her being allowed to spend time with her friends. He also continued to touch her breasts and her vagina. TLP testified that the touching could happen "[a]t any time, any moment. Any time he felt like it, he would walk by me, touch me, my boobs or my vagina, or rub himself against me."

In 2008, the family moved back to Killeen, this time to an address on Wales Drive. There, TLP explained, "[t]hings started getting worse" and "more intense." When TLP began middle school, Hernandez-Silva told her that she had to "pay him more." She had to give him "more oral sex" and "be ready whenever he wanted it." TLP then testified in detail to multiple acts of abuse that Hernandez-Silva committed against her, including forcing her to have sexual intercourse with him and to perform oral sex on him. TLP testified that these acts occurred "two or three times a week" and that Hernandez-Silva "called it paying. Paying for whatever [TLP] wanted." She added that the abuse continued for years, until she was in ninth grade and told her mother that Hernandez-Silva had been sexually abusing her.

Hernandez-Silva testified in his defense and denied committing any acts of sexual abuse against TLP. After considering this and other evidence, the jury found Hernandez-Silva guilty of the charged offense. This appeal followed.

ANALYSIS

Notice

Prior to trial, Hernandez-Silva filed a motion to quash the indictment, asserting that the indictment failed to provide him with sufficient notice of the dates on which he allegedly committed the predicate acts of abuse. The district court denied the motion. In his first issue, Hernandez-Silva asserts that the district court erred in denying the motion.

"The sufficiency of an indictment is a question of law." Hughitt v. State, 583 S.W.3d 623, 626 (Tex. Crim. App. 2019) (citing State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004)). Thus, when the denial of a motion to quash turns solely upon the issue of the sufficiency of the charging instrument, as it does here, we review the trial court's decision de novo. Id.

The right to notice is set forth in both the United States and Texas Constitutions. See U.S. Const. amend. VI; Tex. Const. art. I, § 10. "Thus, the charging instrument must be specific enough to inform the accused of the nature of the accusation against him so that he may prepare a defense." Moff, 154 S.W.3d at 601. "An indictment that tracks the language of a statute usually gives sufficient notice." State v. Jarreau, 512 S.W.3d 352, 354 (Tex. Crim. App. 2017).

A person commits the offense of continuous sexual abuse of a child if, during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age. Tex. Penal Code § 21.02(b). The statute defines "acts of sexual abuse" to include the offenses of indecency with a child by sexual contact, id. § 21.11(a)(1), and aggravated sexual assault, id. § 22.021.

The indictment in this case tracked the language of the statute, alleging that Hernandez-Silva, between on or about September 2, 2007, and on or about April 1, 2011, during a period that was 30 or more days in duration, committed two or more acts of sexual abuse against a child younger than 14 years of age when the defendant was 17 years of age or older. The indictment went on to list the predicate acts of sexual abuse that Hernandez-Silva allegedlycommitted, namely, indecency with a child by sexual contact by intentionally or knowingly engaging in sexual contact with TLP by contacting her genitals; aggravated sexual assault by intentionally or knowingly causing the penetration of TLP's mouth with Hernandez-Silva's sexual organ; and aggravated sexual assault by intentionally or knowingly causing the penetration of TLP's sexual organ with Hernandez-Silva's sexual organ.

Despite the fact that the indictment tracked the language of the statute, Hernandez-Silva asserts that the time period alleged in the indictment was "too broad" to provide him with sufficient notice, and the State should have been required to allege the dates on which he allegedly committed the acts of abuse. We disagree. An indictment must allege what the statute requires the State to prove, see Jarreau, 512 S.W.3d at 354; Beck v. State, 682 S.W.2d 550, 554 (Tex. Crim. App. 1985), but the indictment need not allege facts that are merely evidentiary in nature, see State v. Barbernell, 257 S.W.3d 248, 256 (Tex. Crim. App. 2008); Daniels v. State, 754 S.W.2d 214, 218 (Tex. Crim. App. 1988); DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988). In a prosecution for the offense of continuous sexual abuse of a child, the State is required to prove that the defendant, during a period of 30 or more days in duration, committed two or more acts of sexual abuse against a child younger than fourteen years of age, when the defendant was seventeen years of age or older. See Tex. Penal Code § 21.02(b); Buxton v. State, 526 S.W.3d 666, 676, 681-82 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd); Jacobsen v. State, 325 S.W.3d 733, 737 (Tex. App.—Austin 2010, no pet.). The statute places no time limitation on when the acts of abuse may have occurred, other than the effective date of the statute and the date on which the child turns 14 years of age. Thus, "[t]he State need not prove the exact dates of the abuse, only that 'there were two or more acts of sexual abuse that occurred during a period that was thirty or more days in duration.'" Buxton, 526 S.W.3d at 676(quoting Brown v. State, 381 S.W.3d 565, 574 (Tex. App.—Eastland 2012, no pet.)); see also Tex. Penal Code § 21.02(d) ("If a jury is the trier of fact, members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed."). Accordingly, "while the State must provide the defendant with notice of the time period in which the continuous sexual abuse is alleged to have occurred, it is not necessary for the State to allege the exact dates on which the predicate acts of sexual abuse occurred, as those dates are not essential to the State's case and are considered to be evidentiary facts only." Bleil v. State, 496 S.W.3d 194, 204 (Tex. App.—Fort Worth 2016, pet. ref'd); see Holton v. State, 487 S.W.3d 600, 609-10 (Tex. App.—El Paso 2015, no pet.); Smith v. State, 340 S.W.3d 41, 48 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

In this case, the indictment tracked the language of the statute, specified the predicate acts of abuse that Hernandez-Silva was alleged to have committed, and specified the time period in which he allegedly committed those acts. We conclude that this was "specific enough to inform the accused of the nature of the accusation against him so that he may prepare a defense." See Smith v. State, 297 S.W.3d 260, 267 (Tex. Crim. App. 2009); Holton, 487 S.W.3d at 610; Pollock v. State, 405 S.W.3d 396, 404 (Tex. App.—Fort Worth 2013, no pet.); see also Sanchez-Hernandez v. State, No. 07-11-0474-CR, 2013 WL 1460511, at *2 (Tex. App.—Amarillo Apr. 9, 2013, no pet.) (mem. op., not designated for publication); Davis v. State, No....