Cisneros v. State

• Decision Date: 04 March 2021
• Docket Number: NUMBER 13-18-00652-CR
• Citation: 622 S.W.3d 511
• Parties: Victor CISNEROS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

622 S.W.3d 511

Victor CISNEROS, Appellant,

v.The STATE of Texas, Appellee.

NUMBER 13-18-00652-CR

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed March 4, 2021

David Alan Disher, Attorney at Law, Schulenburg, for Appellant.

Constance Filley Johnson, Victoria County Criminal District Attorney, William Anthony "Andy" Porter, Assistant Criminal District Attorney, Victoria, for Appellee.

Before Chief Justice Contreras and Justices Benavides and Longoria

OPINION ON REMAND

Opinion on Remand by Chief Justice Contreras

We handed down our memorandum opinion and judgment in this cause on August 6, 2020. Appellant filed a motion for rehearing in which he requested, among other things, that we (1) change the notation in our memorandum opinion from "do not publish" to "publish" and (2) change the designation from a memorandum opinion to an opinion. See TEX. R. APP. P. 47.2(a), (b). Pursuant to our request, the State filed a response stating in part that it does not object to the modified notation and designation. We denied the motion for rehearing but withdrew our earlier memorandum opinion and judgment and issued a substitute opinion and judgment on October 15, 2020.

On February 3, 2021, the Texas Court of Criminal Appeals vacated our judgment and remanded to us to clarify which convictions are to be vacated. Cisneros v. State , No. PD-1156-20, 616 S.W.3d 602, 602 (Tex. Crim. App. Feb. 3, 2021) (per curiam) (noting that, though our opinion states that we would vacate the convictions for aggravated sexual assault of a child, the conclusion of our opinion purports to vacate the convictions in Counts 1, 14, and 24, and Count 1 is a conviction for continuous sexual abuse). Accordingly, we now withdraw our opinion of October 15, 2020, and substitute the following opinion along with an accompanying judgment.

A jury convicted appellant Victor Cisneros of eleven sex offenses: two counts of continuous sexual abuse of a young child or children, a first degree felony; three counts of aggravated sexual assault, a first degree felony; and six counts of indecency with a child, a second degree felony. See TEX. PENAL CODE ANN. §§ 21.02, 21.021, 21.11. The trial court set punishment at ninety-nine years' imprisonment for each of the five first degree felonies, and it ordered those sentences to run consecutively. For each of the indecency convictions, appellant was sentenced to concurrent terms of ten years' imprisonment. Appellant contends: (1) the three aggravated sexual assault convictions violated his right against double jeopardy; (2) the two continuous sexual abuse convictions violated his right against double jeopardy; (3) the sentences for the two continuous sexual abuse convictions were cruel and unusual; (4) the indictment did not give him sufficient notice of the offense dates; and (5) the jury charge contained error.

The State concedes appellant's first issue. We will reverse and render the three aggravated sexual assault convictions and affirm the remaining convictions.

I. BACKGROUND

Appellant was charged by indictment with forty-three sex offenses, including continuous sexual abuse of a child (Counts 1 and 2), aggravated sexual assault of a child (Counts 3 through 26), indecency with a child by sexual contact (Counts 27, 28, and 29), and indecency with a child by exposure (Counts 30 through 43). The victims alleged in the indictment are appellant's former stepdaughters C.S. and M.S., who were ten and eleven years old, respectively, at the time of trial in August 2018.¹

At trial, S.S.C. testified she is the mother of C.S. and M.S. and that she was once married to appellant. Appellant lived with the family in Victoria, first in a house on Wheeler Street and later in a house on Virginia Street. S.S.C. said there were many times when she went out for errands and appellant was alone with the children. S.S.C. stated that, on February 23, 2017, C.S. told her that appellant "put his thing on my thing" and he put "his middle on her middle." That evening, she confronted appellant, and according to S.S.C., appellant replied by saying "they hug me in that area," but S.S.C. told him that was not what she was referring to. At that point, appellant "stood there for maybe a couple of seconds, and he said, ‘But what am I going to tell my mom? What am I going to tell my daughters?’ " S.S.C. testified that appellant said: " ‘What if I go to prison?’ " She said she told appellant to leave the apartment, and he left.

S.S.C. later made a report to Child Protective Services. C.S. was interviewed at the Children's Advocacy Center (CAC) the following day. About three days later, M.S. told S.S.C. that "he did to me what he did to [C.S.]" M.S. was then also interviewed at CAC, and both C.S. and M.S. submitted to sexual assault nurse examinations (SANE) on March 16, 2017.

S.S.C. stated she noticed a "drastic change" in the "attitude" of the girls when the family lived in the Wheeler Street house, and their "attitude and behavior" became worse as time progressed. She said M.S. had been admitted into a mental hospital four times in the three months preceding trial.

Detective Christina Tate of the Victoria Police Department testified that she met with S.S.C. and C.S. on February 28, 2017. She observed the CAC interviews. According to Tate, C.S. "appeared sad" and "scared" and "buried her head in the arm of the chair" during her interview; M.S. "appeared very—just sad, ashamed" and "covered her face a lot when talking."

Tate interviewed appellant on April 3, 2017. Appellant said that S.S.C. left the children with him on several occasions, even though he had asked her to take them with her. According to Tate, when appellant was asked for an explanation as to why his penis would have touched his stepdaughters, he said: "I don't know. They hug me every day. You know, I walk in my pajamas. I'm cooking. They're hugging me. I'm laying down. They're right beside me, seeing TV; or they're sitting on my lap." Tate said appellant was cooperative with law enforcement.

C.S. testified appellant "put his middle part to [her] middle part" while her mother was out shopping and her brothers were in another room playing video games. She said this happened "[m]ore than one time" and that it first happened during the daytime at the Wheeler Street house. C.S. said she was lying down and facing up on her mother's bed, while appellant was lying down "[o]n top of [her]" and facing down. She said appellant told her to get on the bed, "pulled ... down" her underwear, pulled up her dress, and took off his clothes. C.S. agreed with the prosecutor that "[s]kin to skin" contact was made, and that appellant also touched her "middle part" with his hand, but C.S. could not remember whether "his middle part went into [her] middle part." She said that, once in the Wheeler Street house, appellant "told [her] to put [her] mouth onto his middle part" and she did so. C.S. said this also happened in the Virginia Street house and that she told her mother about it "immediately" after the last time it happened. She denied that appellant told her not to tell anyone.

M.S. testified that, at Wheeler Street house, while her mother and brothers were out shopping, appellant asked her to come into her mother's bedroom, pulled down her pants and underwear, and "was going ... up and down on top of me." M.S. said appellant's pants and underwear were "completely off." She testified that appellant put his finger in her "middle," that he "put his middle in [her] mouth," and that "his middle [went] inside [her] middle." She stated appellant told her not to tell or "[h]e would kill my family." Another time at the Virginia Street house, appellant told M.S. to go to her mother's room, took off her clothes, and was "[g]oing up and down" and put his "middle" inside her "middle," which hurt.

Appellant was convicted on Counts 1 and 2 (continuous sexual abuse of a young child); Counts 11, 14, and 24 (aggravated sexual assault); and Counts 30, 33, 34, 36, 37, and 43 (indecency with a child).² The trial court sentenced appellant as set forth above. Appellant filed a motion for new trial which was denied after a hearing, and this appeal followed.

II. DISCUSSION

The arguments appellant makes in his first three issues were raised in his motion for new trial. We review the trial court's denial of that motion for abuse of discretion, reversing only if no reasonable view of the record could support the ruling. Burch v. State , 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). However, a trial court has no discretion in determining what the law is or applying the law to the facts. State v. Kurtz , 152 S.W.3d 72, 81 (Tex. Crim. App. 2004). Thus, a failure by a trial court to analyze or apply the law correctly constitutes an abuse of discretion. Id.

A. Double Jeopardy

1. Aggravated Sexual Assault

By his first issue, appellant argues that the three aggravated sexual assault convictions should be vacated on double jeopardy grounds. The State agrees with appellant, as do we.

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) ; Carmichael v. State , 505 S.W.3d 95, 100 (Tex. App.—San Antonio 2016, pet. ref'd) ; see Brown v. Ohio , 432 U.S. 161, 168, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) ("The greater offense is ... by definition the ‘same’ for purposes of double jeopardy as any lesser offense included in it."); Langs v. State , 183 S.W.3d 680, 685 (Tex. Crim. App. ...