Lopez v. State

Decision Date11 August 2022
Docket Number13-19-00601-CR
CourtTexas Court of Appeals

Do not publish. Tex.R.App.P. 47.2(b).

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

Before Chief Justice Contreras and Justices Benavides and Tijerina



A jury convicted appellant Francisco Ezequiel Lopez of continuous sexual abuse of a child (Count One), aggravated sexual assault of a child (Count Two), and indecency with a child (Count Three). See Tex. Penal Code Ann. §§ 21.02, 21.11, 22.021. By three issues, which we have reordered,[1] Lopez contends that: (1) the evidence was legally insufficient to support his convictions (2) he was egregiously harmed by jury charge error with respect to Count One; and (3) his conviction for Count Two violated his double-jeopardy rights under the United States and Texas Constitutions. [2] We affirm the judgments for Count One and Count Three as modified and vacate the judgment for Count Two.

I. Background

Lopez was indicted for committing three sexual offenses against his stepdaughter Mary[3] while she was under the age of fourteen. Count One alleged that "from on or about the 1st day of September, 2017 through on or about the 23rd day of August, 2018," Lopez committed two or more acts of sexual abuse against Mary, "namely aggravated sexual assault of a child and indecency with a child by contact." Count Two alleged that "on or about August 24, 2018," Lopez committed aggravated sexual assault against Mary by intentionally penetrating her sexual organ with his sexual organ. Count Three alleged that "on or about the 1st day of January, 2018," Lopez engaged in sexual contact with Mary by touching her breast with the intent to arouse or satisfy his sexual desire.

Mary, twelve years old at the time of trial, testified that Lopez began sexually abusing her in "fourth or fifth grade," when she was "9 or 10" years old. Typically, Lopez would "put his penis inside [her] vagina." She could not remember exactly how many times this occurred but said that it happened "a lot," both on the living room couch and on her bed. Sometimes her mother was not home, and other times she was in an adjacent room.

The last time "was the day before the first day of sixth grade," which began "[t]he last week of August 2018," when Mary was eleven years old. Mary remembered this incident specifically because afterwards Lopez helped her get a cellphone. After previous assaults, Lopez would "randomly" give Mary money.

In addition to penetrating her sexual organ with his penis, Mary testified that Lopez would place his hands "under" her bra and touch her "breasts." Lopez also used the "palm of his hands" to "rub against" her "vagina." This occurred "both" over and under her clothing.

The abuse stopped because Mary told two of her friends, and they in turn reported it to a school counselor. Initially, Mary was not forthcoming about the extent of the abuse. She explained that she "felt guilty" and "didn't want to tear the family apart." Mary also felt conflicted because, despite the abuse, she "had a very close bond with [Lopez]," and he was otherwise "a good dad."

The jury convicted Lopez on all three counts and assessed his punishment at thirty-five years' confinement on Count One, twenty years' confinement on Count Two, and ten years' confinement on Count Three. The trial court ordered that the sentences be served consecutively, beginning with Count One and ending with Count Three. This appeal ensued.

II. Sufficiency of the Evidence

By his first issue, Lopez challenges the sufficiency of the evidence to support his convictions.

A. Standard of Review & Applicable Law

In a legal sufficiency review, "we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt." Hammack v. State, 622 S.W.3d 910, 914 (Tex. Crim. App. 2021) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Because the jury is the trier of fact, we "must defer to the jury's credibility and weight determinations." Id. This includes resolving conflicts in the testimony. Carter v. State, 620 S.W.3d 147, 149 (Tex. Crim. App. 2021) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

B. Analysis

Rather than contesting any particular element of each offense, Lopez generally attacks Mary's credibility. According to Lopez, "Mary told so many lies throughout the process, it follows that nothing she says can be believed or relied upon to uphold the verdicts and resulting convictions in this case." This is the extent of his sufficiency challenge.

It is well-established, however, that the jury is the "sole judge" of a witness's credibility and the weight to be given to her testimony. Hammack, 622 S.W.3d at 914 (quoting Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012)). We may not, as Lopez implicitly suggests, substitute our judgment for that of the factfinder. Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim. App. 2014).

Contrary to Lopez's aspersions, the jury clearly found Mary credible. See Hernandez v. State, 610 S.W.3d 106, 111 (Tex. App.-Houston [14th Dist.] 2020, pet. ref'd) (noting that in a sufficiency review, "we presume that the jury credited the complainant's testimony"). Moreover, Mary's testimony alone was sufficient to support Lopez's convictions. See Tex. Code Crim. Proc. Ann. art. 38.07; Bautista v. State, 605 S.W.3d 520, 525 (Tex. App.-Houston [14th Dist.] 2020, no pet.) ("[T]he uncorroborated testimony of a child seventeen years of age or younger is sufficient to support a conviction for aggravated sexual assault of a child."). Accordingly, Lopez's first issue is overruled.

III. Jury Charge Error

Lopez next argues that the jury charge for Count One contained "an illegal application paragraph" because it permitted the jury to convict him for conduct that does not constitute an act of sexual abuse-namely, sexual contact with Mary's breasts.

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. 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)).

When, like here, an appellant fails to timely object to the jury charge, a reviewing court will only reverse upon a showing of egregious harm. Chambers v. State, 580 S.W.3d 149, 154 (Tex. Crim. App. 2019). "Charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory." Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g), superseded on other grounds by rule stated in Rodriguez v. State, 758 S.W.2d 787, 788 (Tex. Crim. App. 1988)). Essentially, egregious harm occurs when the appellant is deprived of a fair and impartial trial. Chambers, 580 S.W.3d at 154 (citing Villarreal, 453 S.W.3d at 433). A "high and difficult standard" to meet, egregious harm must be evident from the record "rather than theoretical." Villarreal, 453 S.W.3d at 433 (first quoting Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013); and then quoting Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011)).

In making this determination, we consider: "(1) the entirety of the jury charge, (2) the state of the evidence, including the contested issues and weight of probative evidence, (3) the arguments of counsel, and (4) any other relevant information revealed by the trial record as a whole." Id. (citing Almanza, 686 S.W.2d at 171).

B. Analysis

The jury was provided with a separate jury charge for each count. As to Count One, the abstract portion accurately defined "act of sexual abuse" to include the predicate offense of indecency with a child by sexual contact "other than by touching, including touching through clothing, the breast of a child." See Tex Penal Code Ann. § 21.02(c)(2). The abstract portion also accurately defined "indecency with a child" as engaging in "sexual contact" with a child, which includes "any touching, including touching through clothing, of the anus, breast, or any part of the genitals of a child." See id. § 21.11(a)(1), (c)(1). The application paragraph then asked the jury to consider whether the evidence proved beyond a reasonable doubt that during the requisite period Lopez "committed two or more acts of sexual abuse against...

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