Charles Anthony Cueva Ii v. State, NUMBER 13-09-00195-CR

• Decision Date: 02 May 2011
• Docket Number: NUMBER 13-09-00195-CR
• Parties: CHARLES ANTHONY CUEVA II, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

CHARLES ANTHONY CUEVA II, Appellant,

v.THE STATE OF TEXAS, Appellee.

NUMBER 13-09-00195-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI-EDINBURG

Dated: May 2, 2011

On appeal from the 347th District Court

of Nueces County, Texas.

OPINION

Before Justices Rodriguez, Benavides, and Vela

Opinion by Justice Rodriguez

Appellant Charles Anthony Cueva II challenges his conviction for one count of indecency with a child and two counts of sexual assault of a child. See Tex. Penal Code Ann. § 21.11(a) (West Supp. 2010), ¹ § 22.021(a)(1)(B) (West Supp. 2010). By four issues, Cueva argues that: (1) the jury charge on one count of sexual assault allowed for his conviction on a less than unanimous verdict; (2) the punishment charge contained an erroneous instruction regarding the applicability of good conduct time to his potential parole calculation; and (3-4) he received ineffective assistance of counsel. We affirm.

I. Background

Indicted on eleven counts, Cueva pleaded not guilty to six counts of aggravated sexual assault and one count of indecency with a child by contact. The State abandoned the remaining four counts before the trial began. A jury convicted Cueva of two counts of aggravated sexual assault and assessed punishment at seventy years in prison and a $10,000 fine.² See Tex. Penal Code Ann. § 22.021(e) (identifying aggravated sexual assault as a first-degree felony), § 12.32 (West Supp. 2010) (providing for first-degree felony punishment as imprisonment "for life or for any term of not more than 99 years or less than 5 years" and "a fine not to exceed $10,000").³ Italso convicted Cueva of the one count of indecency with a child and assessed punishment at fifteen years and a $10,000 fine. See id. § 21.11(d) (setting out that indecency with a child under subsection (a)(1) is a second-degree felony), § 12.33 (West Supp. 2010) (allowing for second-degree felony punishment as imprisonment "for any term of not more than 20 years or less than 2 years" and "a fine not to exceed $10,000"). The trial court ordered the sentences to run concurrently. Cueva filed a motion for new trial raising, among other issues, ineffective assistance of counsel claims. After hearing Cueva's motion for new trial, the trial court denied the motion and later issued extensive findings. This appeal followed.

II. Jury Charge Issues

In his first two issues, Cueva complains of charge error. By his first issue, Cueva argues that the guilt-innocence jury charge allowed for his conviction for aggravated sexual assault on a less than unanimous verdict. By his second issue, Cueva argues that the jury charge at the punishment stage contained an erroneous instruction regarding the applicability of good conduct time to his potential parole calculation.

A. Standard of Review

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). If error is found, the degree of harm necessary for reversal depends on whether the appellant preserved the error by objection. Id. If the defendant properly objected to the erroneous jury charge, reversal is required if we find "some harm" to the defendant's rights. Id. Here, Cueva concedes that he did not object at trial to either jury charge issue he raises on appeal, so we may only reverse if the record shows egregious harm. See id. at 743-44.

Egregious harm is a difficult standard that is determined on a case-by-case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002) (en banc); Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (en banc); see Igo v. State, 210 S.W.3d 645, 647 (Tex. Crim. App. 2006) (applying egregious harm analysis to erroneous parole and good conduct instructions). To determine whether a defendant suffered egregious harm, we assess the degree of harm in light of (1) the entire jury charge, (2) the state of the evidence, including contested issues, (3) the arguments of counsel, and (4) any other relevant information in the record. Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008); see Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1985) (op. on reh'g). 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." Ngo, 175 S.W.3d at 750; Hutch, 922 S.W.2d at 171 (citing Almanza, 686 S.W.2d at 172).

B. UNANIMITY OF THE VERDICT ON COUNT 4

1. Applicable Law

The Texas Constitution requires a unanimous verdict in felony criminal cases. Tex. Const. art. V, § 13; see Tex. Code Crim. Proc. Ann. art. 36.29(a) (West Supp. 2010). A unanimous verdict is more than a mere agreement on a violation of a statute; it ensures that the jury agrees on the factual elements underlying an offense. Francis v. State, 36 S.W.3d 121, 125 (Tex. Crim. App. 2000) (op. on reh'g) (en banc). Generally, instructing a jury on alternative theories of committing the same offense does not violate the unanimity requirement. Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004). If a defendant is charged with multiple offenses, however, the trial court must instruct the jury that it cannot return a guilty verdict unless it unanimously agrees upon which offense the defendant committed. Gonzalez Soto v. State, 267 S.W.3d 327, 335 (Tex. App.—Corpus Christi 2008, no pet.) (citing Ngo, 175 S.W.3d at 744).

We determine exactly what a jury must be unanimous about by examining the legislative intent of the applicable statute. Id. (citations omitted). The statute at issue here is section 22.021 of the penal code, which provides, in relevant part, that a defendant commits an offense if he intentionally or knowingly:

(i) causes the penetration of the anus or sexual organ of a child by any means;

(ii) causes the penetration of the mouth of a child by the sexual organ of the actor;

(iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

(iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or(v) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor; and

the victim is younger than fourteen years of age. Tex. Penal Code Ann. § 22.021(a)(1)(B), (2)(B). The Texas Court of Criminal Appeals has ruled that section 22.021 is a conduct-oriented offense in which the Legislature criminalized specific acts of conduct of several different types. Vick v. State, 991 S.W.2d 830, 832 (Tex. Crim. App. 1999). In other words, each of the above separately-described acts constitutes a separate statutory offense. Id. at 833. For example, an allegation that a defendant caused a child's sexual organ to contact his mouth is a separate and distinct offense from an allegation that the defendant penetrated the child's sexual organ with his sexual organ. See id. Likewise, touching a child's breast and touching a child's genitals are separate offenses. See Francis, 36 S.W.3d at 124.

For our purposes, however, there is one notable exception to Vick's general rule—the exception for subsumed conduct. See Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004) (en banc); Valdez v. State, 211 S.W.3d 395, 400 (Tex. App.—Eastland 2006, no pet.); Hendrix v. State, 150 S.W.3d 839, 848 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd). It is true that section 22.021 identifies different types of conduct that constitute separate offenses, even if the different acts occur in the same transaction. Valdez, 211 S.W.3d at 400; see Tyson v. State, 172 S.W.3d 172, 178 (Tex. App.—Fort Worth 2005, pet. ref'd). There are some cases, though, in which one of the acts would necessarily be subsumed by another, such as contact and penetration. Valdez, 211 S.W.3d at 400; see Gonzalez Soto, 267 S.W.3d at 339. In that event, what would appear under the charge to be two acts—contact andpenetration—is, essentially, one act for purposes of determining unanimity, and as such, the defendant's right to unanimity in his verdict is not violated because every juror who believed that the defendant penetrated the alleged victim "necessarily believed that the antecedent contact had occurred." Valdez, 211 S.W.3d at 400; see Hendrix, 150 S.W.3d at 848; see also Patterson, 152 S.W.3d at 92 (holding that penile contact with the alleged victim's mouth, genitals, or anus in the course of penile penetration is subsumed within the penetration offense).

2. Discussion

In his first issue, Cueva argues that the jury charge on Count 4 was erroneous because the jury could have found him guilty of aggravated sexual assault without unanimously agreeing that Cueva either contacted or penetrated A.G.'s anus. We disagree.

In Count 4, the jury was charged as follows:

Now if you find from the evidence beyond a reasonable doubt that [Cueva], on or about August 5, 2007, in Nueces County, Texas, did then and there intentionally or knowingly cause his sexual organ to contact or penetrate the anus of [A.G.], and that [A.G] was then younger than 14 years of age and not the spouse of [Cueva], then you will find [Cueva] guilty of Count 4: Aggravated Sexual Assault Of A Child.

Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will find [Cueva] not guilty of Count 4: Aggravated Sexual Assault Of A Child.

The allegation that Cueva caused his sexual organ to contact A.G.'s anus is subsumed within the allegation that he penetrated A.G.'s anus with his sexual organ. Every juror who believed that Cueva penetrated A.G.'s anus necessarily believed that he contacted it. Unlike the cases in which the alleged conduct was contact or penetration ofseparate body parts, here, Cueva could only be convicted under Count 4 if the jury determined that he assaulted A.G.'s anus. In other words, the jury could not divide over whether Cueva...