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Date: 07-15-2017

Case Style:

Jose Luis Perez Basilio AKA Jose L. Perez v. The State of Texas

Case Number: 02-15-00091-CR

Judge: Bill Meier

Court: COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

Plaintiff's Attorney:

Debra A. Windsor

Defendant's Attorney:

Mike Berger



Andy Porter

Description: Sisters S.R. and K.R., their brother A.R., their parents, and their younger
brothers lived with Basilio and his wife for a time. Some evenings, the children’s
mother (Mother) would leave the children at home alone with Basilio while she
picked up their father at work. After S.R.’s parents caught her with lime or lemon
beer salt that they did not use but that they knew Basilio used, allegations
3
surfaced of sexual abuse of the two little girls by Basilio. The girls were both
interviewed at the child advocacy center, and the younger one, K.R., also
underwent a sexual assault exam.
At trial, S.R., K.R., and A.R. testified, as well as Mother, the people who
interviewed the children at the child advocacy center, the nurse (SANE) who
examined K.R., and the detective in charge of the case. The jury also watched
and listened to a video of Basilio’s interview with the police.
Count One of the indictment charged Basilio with committing continuous
sexual abuse of a child on or about October 1, 2013, through January 14, 2014.
The State waived Counts Two through Five, which alleged four separate acts of
indecency with a child by contact regarding S.R.—two counts with “on or about”
dates of October 1, 2013, and two counts with “on or about” dates of January 14,
2014.
In addition to charging the jury on Count One, the jury charge also charged
the jury on three lesser included offenses of indecency with a child by contact—
specifically, Basilio’s touching of the named complainant’s genitals with his hand.
After the charge conference but still outside the presence of the jury, the trial
court explained,
I have submitted by the agreement of both parties what as a matter of law are lesser-included offenses of the continuous sexual abuse of young child count, but they’re labeled as “Offense One,” “Offense Two,” and “Offense Three” simply to assist [] the jury in keeping track of which case is which alleged victim of circumstance, but as a matter of law, they’re submitted as lessers.
K.R. was the named complainant in Offense One and Offense Three; S.R.
4
was the named complainant in Offense Two. Originally, Offense One and
Offense Two had “on or about” dates of October 1, 2013, and Offense Three had
an “on or about” date of January 14, 2014. After jury deliberations began, the
trial court amended the “on or about” date of Offense Three to October 1, 2013.
III. DISCUSSION
A. Competence of Children to Testify
In part of his third point, Basilio contends that the trial court abused its
discretion by determining that K.R. and A.R. were competent to testify. Basilio
does not challenge S.R.’s competence to testify. Further, and as the State points
out, Basilio did not object to the trial court’s ruling on A.R.’s competence to testify
in the trial court. He has therefore forfeited his complaint pertaining to A.R. for
our review. See Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 670,
674 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1461 (2016); Sanchez v.
State, 418 S.W.3d 302, 306 (Tex. App.—Fort Worth 2013, pet. ref’d); see also
De Los Santos v. State, 219 S.W.3d 71, 80 (Tex. App.—San Antonio 2006, no
pet.). Thus, the only issue remaining in this part of Basilio’s third point is whether
the trial court abused its discretion by determining that K.R. was competent to
testify. See Broussard v. State, 910 S.W.2d 952, 960 (Tex. Crim. App. 1995),
cert. denied, 519 U.S. 826 (1996).
A trial court does not abuse its discretion by allowing a child to testify if its
decision to allow the testimony falls within the zone of reasonable disagreement.
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on
5
reh’g); Torres v. State, 424 S.W.3d 245, 254 (Tex. App.—Houston [14th Dist.]
2014, pet. ref’d).
As this court recently explained,
We review the child’s responses to qualification questions as well as the child’s entire testimony to determine whether the trial court’s ruling constituted an abuse of discretion.
All witnesses are presumed competent to testify, including children. When competency is challenged, however, the trial court must make a determination of whether the child (1) had the ability to intelligently observe the events in question at the time of the occurrence and (2) has the capacity to recollect and narrate the events. A witness has the capacity to narrate if the witness is able to understand the questions asked, frame intelligent answers to those questions, and understand the moral responsibility to tell the truth.
Gonzalez v. State, No. 02-14-00229-CR, 2015 WL 9244986, at *3 (Tex. App.—
Fort Worth Dec. 17, 2015, pet. ref’d) (mem. op., not designated for publication)
(citations omitted), cert. denied, 137 S. Ct. 169 (2016).
Establishing the child witness’s incompetence to testify is the responsibility
of the party moving to exclude her testimony. Id. (citing Gilley v. State, 418
S.W.3d 114, 121 (Tex. Crim. App.), cert. denied, 135 S. Ct. 57 (2014)). Further,
“[c]onfusing and inconsistent responses from a child are not reasons to
determine she is incompetent to testify; rather, they speak to the credibility of her
testimony.” In re A.W., 147 S.W.3d 632, 635 (Tex. App.—San Antonio 2004, no
pet.); Gonzalez, 2015 WL 9244986, at *6. The trial court’s role is to determine
competence, not to assess the weight or credibility of the child’s testimony.
A.W., 147 S.W.3d at 635.
6
While Basilio concedes that six-year-old K.R. was able to name her
siblings and her teacher, could count to twenty in English and Spanish, and could
identify the basic color groups, he argues,
In every other matter, her testimony was a hodgepodge of nonsequiturs, forgetfulness, or lack of understanding. She was unable to remember her birthday, the month in which Christmas falls, the name of her school, the number of children in her class, the city in which she lived, the name of the street she lived on, the place where she had lived before that, and the very purpose for her presence in the courtroom. This last point is very disturbing, because it might be expected that the prosecutor or the victim’s assistance personnel would have prepared the child for the courtroom. Yet, after all that preparation K.R. could not recall why she was in the courtroom:
THE COURT: Do you know why people asked you to come to court today?
THE WITNESS: I forgot.
THE COURT: Do you know when you come into court, people ask you questions, kind of like I do? That’s our job. We ask questions. We get paid to ask questions. That’s our job. Okay? Did you know that?
THE WITNESS: I didn’t say it. [record citations omitted]
Basilio also points out K.R.’s inability to recognize people in the courtroom
and to properly identify them and her multiple “I forgot” answers when testifying
about the alleged offense.
But K.R. demonstrated at the hearing and at trial that she knew the
difference between the truth and a lie by stating that the trial judge would be
telling a lie if he said her purple dress was green. K.R. also testified at the
hearing that she was there to answer questions about “the young man d[oing]
7
nasty things to [her].” Before the jury, K.R. identified Basilio as the man she
knew as Parquitas. She testified that he did “nasty things” to her genital area
with his hand, and she demonstrated by rubbing the thumb and fingers of her left
hand together. She further testified that it had happened in his kitchen when she
lived there, and that it happened one time.
As the trial judge pointed out, this case was hampered by “an ongoing
with-interpreter-double-translation process,” and he was present “to personally
evaluate the child and her responses.” Id. Further, any confusion in K.R.’s
answers goes to the weight and credibility of her testimony, not her competence
to testify. See id. Accordingly, based on our review of her testimony at the
hearing as well as her testimony before the jury, we hold that Basilio failed to
overcome the presumption that K.R. was competent to testify and that the trial
court did not abuse its discretion by deciding that she was competent to testify.
We overrule this portion of Basilio’s third point.
B. Sufficiency of the Evidence
In parts of his first, second, and third points, Basilio contends that the
evidence is insufficient to support his convictions. We agree, as does the State,
that the evidence is insufficient to support Offense Three, but we agree with the
State that the evidence is sufficient to support Offense One and Offense Two.

1. Standard of Review
In our due-process review of the sufficiency of the evidence to support a
8
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Jenkins v. State, 493 S.W.3d 583, 599
(Tex. Crim. App. 2016); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App.
2014).
This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.
at 2789; Jenkins, 493 S.W.3d at 599; Dobbs, 434 S.W.3d at 170.
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); ); Blea v.
State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016); Dobbs, 434 S.W.3d at 170.
Thus, when performing an evidentiary sufficiency review, we may not re-evaluate
the weight and credibility of the evidence and substitute our judgment for that of
the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010); see
Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we
determine whether the necessary inferences are reasonable based upon the
cumulative force of the evidence when viewed in the light most favorable to the
verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied,
136 S. Ct. 198 (2015); Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App.
2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). We
9
must presume that the factfinder resolved any conflicting inferences in favor of
the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at
2793; Murray at 448–49; Dobbs, 434 S.W.3d at 170; see Blea, 483 S.W.3d at 33.
We measure the sufficiency of the evidence by the elements of the offense
as defined by the hypothetically correct jury charge for the case, not the charge
actually given. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)); see Crabtree v.
State, 389 S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The essential elements of
the crime are determined by state law.”). Such a charge is one that accurately
sets out the law, is authorized by the indictment, does not unnecessarily restrict
the State’s theories of liability, and adequately describes the particular offense for
which the defendant was tried. Byrd, 336 S.W.3d at 246. The law as authorized
by the indictment means the statutory elements of the charged offense as
modified by the factual details and legal theories contained in the charging
instrument. See Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App.
2013); see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014)
(“When the State pleads a specific element of a penal offense that has statutory
alternatives for that element, the sufficiency of the evidence will be measured by
the element that was actually pleaded, and not any alternative statutory
elements.”).
The standard of review is the same for direct and circumstantial evidence
cases; circumstantial evidence is as probative as direct evidence in establishing
10
the guilt of an actor. Dobbs, 434 S.W.3d at 170; Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). We must consider all the evidence admitted at trial,
even improperly admitted evidence, when performing a sufficiency review.
Jenkins, 493 S.W.3d at 599; Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App.
2014); Moff v. State, 131 S.W.3d 485, 489–90 (Tex. Crim. App. 2004).
2. Law of Indecency with a Child
Section 21.11 of the penal code provides in relevant part that “[a] person
commits an offense if, with a child younger than 17 years of age, . . . the
person . . . engages in sexual contact with the child.” Tex. Penal Code Ann.
§ 21.11(a)(1) (West 2011). The statute defines “sexual contact” to include “any
touching by a person, including touching through clothing, of the anus, breast, or
any part of the genitals of a child” as long as the touching is “committed with the
intent to arouse or gratify the sexual desire of any person.” Id. § 21.11(c)(1).
While Basilio focuses on the specific dates of October 1, 2013, and
January 14, 2014, time is not generally a material element of an offense and
definitely is not in the case of indecency with a child by contact. See Garcia v.
State, 981 S.W.2d 683, 686 (Tex. Crim. App. 1998); see also Tex. Penal Code
Ann. § 21.11(a)(1); Gutierrez v. State, No. 02-16-00005-CR, 2016 WL 5957023,
at *2 (Tex. App.—Oct. 13, 2016, no pet.) (mem. op. on reh’g, not designated for
publication). The “on or about” language allowed the State to prove any date
before the presentment of the indictment and within the statutory limitation period
of the offense. Sledge v. State, 953 S.W.2d 253, 255–56 (Tex. Crim. App. 1997).
11
Moreover, there is no statute of limitations for indecency with a child. Tex. Code
Crim. Proc. Ann. art. 12.01(1)(E) (West Supp. 2016); Gutierrez, 2016 WL
5957023, at *2.
3. The Evidence of Indecency with a Child by Contact
S.R., who was ten years old at trial, testified that her family had lived in
Basilio’s home a year earlier when she was in the fourth grade. She stated that
he liked the children to call him Parquitas. S.R. told the jury that when her
parents were not home, Basilio started touching her “parts” and her “middle part”
in October of her fourth-grade year. She explained that “the middle part” was
also called the “wee-wee” and that she used it to urinate. S.R. stated that the
sexual abuse began when K.R. would go to Basilio’s bedroom and S.R. would
follow her. S.R. testified that Basilio gave her Takis (spicy chips) in his room.
She said that he touched her “wee-wee” with his hand over her clothes; then he
would smell his hand and say, “It smells good.” S.R. testified that it happened
more than ten times after Halloween but before Thanksgiving.
S.R. testified that she told her brother about the sexual abuse after the first
or second occurrence and that he then went to Basilio’s bedroom with her each
time and witnessed the events. S.R. also testified that K.R. told their parents,
maybe in December of that year, but that the parents thought she was joking.
S.R. stated that she also told two friends at school because they knew how to
keep a secret. She further explained that Mother figured out something was
going on when she saw S.R. with the “beer salt” that Basilio had given her. The
12
last occurrence happened before that discovery.
S.R. also testified that she saw something happen with K.R. while Basilio
and the girls were in Basilio’s bedroom. S.R. testified that Basilio would touch
K.R. with his hands “[o]n the same part he touched [S.R.],” her “wee-wee,” but he
did not smell his hand after touching K.R.
K.R., who was six years old and in kindergarten at trial, identified Basilio as
the man she knew as Parquitas. She testified that he did “[n]asty things” to the
part of her body from which she urinates, under her clothes and with his hand,
and she demonstrated by rubbing her thumb to the fingers of her left hand. She
further testified that it had happened in the kitchen of Basilio’s home, that her
parents were at the home, that her family had lived there then but had moved “so
nothing else” would “happen to [her],” that it had happened once, and that it had
not happened to S.R.
A.R., who was seven years old at trial, testified that Basilio came into the
children’s room one night near Christmas and touched both S.R. and K.R. as
they lay in bed. According to A.R., first Basilio grabbed S.R. and told her to
come to his room but A.R. said that she declined. A.R. testified that Basilio then
touched the girls on their “parts.” A.R. explained that Basilio touched S.R. on her
front part and back part and clarified that the front part was “[w]here she . . . pees
from.” A.R. testified that Basilio touched S.R. on top of the bed covers as she lay
under them. A.R. also testified that Basilio touched K.R., who was asleep, on her
front part and that Basilio touched above the covers as she lay under them.
13
A.R. said that the incident made him feel bad and that he told his parents
the next day that it had happened but that “[t]hey didn’t tell [him] to tell them
about it.”
Mother testified that she left the children at home with Basilio only about
eight times each month in December 2013 and January 2014. She stated that
she saw S.R. with the salt in January 2014 and asked her directly if someone
had been touching her. Mother testified that S.R. denied it at first but then
reported that Basilio had touched her “wee-wee” and then would smell his hand.
Mother testified that she understood her daughter to be speaking of her vulva
when using the term “wee-wee.”
After the outcry, Mother called her pastor, and she and the girls met him at
McDonald’s. Mother then called the police and took the three children to Alliance
for Children, and K.R. was later taken to Cook Children’s for a sexual assault
exam. Mother admitted that Basilio sometimes complained that the children
were in his room when she was not at home.
Detective Pat Henz testified that he received the case on January 16,
2014, that the children were interviewed at Alliance for Children on January 28,
2014, and that a sexual assault exam was performed on K.R. on February 10,
2014.
The SANE testified that K.R. told her that “Carpita,” identified as Basilio,
had touched her underneath her clothes with his hand on her “thing,” which is the
term that K.R. used to describe her genitalia, but that she denied penetration.
14
The forensic interviewer who interviewed K.R. testified that K.R. had told
her that “Carpita” had fondled her under her underwear and that he “touched the
part where she pees from” and “the part where she poops from” with his hand
and that he then “smelled it.” The forensic interviewer also testified that K.R.
described digital penetration of both the vagina and anus. The forensic
interviewer testified that K.R. told her that it happened when Mother had gone to
pick the father up from work and that it happened when Basilio was sitting on “his
table for eating” and she was standing up.
The forensic interviewer who interviewed S.R. testified that S.R. disclosed
sexual abuse, but the forensic interviewer did not provide details.
Basilio told officers that he was occasionally home alone with the children.
He stated that sometimes they would wake up and leave their bedroom, and S.R.
would come in his bedroom. He also stated that all three of the children were in
his bedroom once because they picked the lock to get in. He stated that on
another occasion, he pushed them out of the bathroom he was using. Basilio
believed that the girls made outcries because he threatened to tell their mother
about some misbehavior and threatened to spank them. He said they got the
idea from an incident at their school involving a teacher sexually abusing a
student. He denied ever being in the children’s bedroom but admitted that he
had bought S.R. Takis.
4. The Two Convictions of Indecency by Contact with K.R.
The jury charge questions on Offense One and Offense Three (after the
15
trial court amended the date in Offense Three) both instructed the jury to find
Basilio guilty of indecency with a child if they found
from the evidence beyond a reasonable doubt that [Appellant] in Tarrant County, Texas, on or about the 1st day of October, 2013, did then or there intentionally, with the intent to arouse or gratify [his] sexual desire . . . , engage in sexual contact by touching the genitals of [K.R.], a child younger than 17 years of age[.]
a. Offense Three
Basilio contends that the record clearly shows that K.R.’s genitalia was
allegedly touched, if at all, only once, according to her testimony and that of
various professionals. The State concedes that the evidence only supports one
conviction for indecency by contact regarding Basilio having contacted K.R.’s
genitalia and that neither the indictment nor the jury charge alleged an improper
touching of K.R.’s anus by Basilio (even though evidence was presented of such
an act), and thus insufficient evidence exists to support the trial court’s judgment
for Offense Three. We agree that the State’s concession is supported by the law
and facts of this case. Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App.
2002) (“A confession of error by the prosecutor in a criminal case is important,
but not conclusive, in deciding an appeal.”); see also Estrada v. State, 313
S.W.3d 274, 286–88 (Tex. Crim. App. 2010) (following Saldano and
independently examining record to determine whether appellant’s asserted issue
had merit), cert. denied, 462 U.S. 1142 (2011).
Indecency with a child is a conduct-oriented offense, and each of the types
of circumstances—whether it be touching of the breasts, genitals, or anus—
16
constitute three separate and different offenses. See Pizzo v. State, 235 S.W.3d
711, 719–20 n.10 (Tex. Crim. App. 2007) (holding that different types of conduct
under the indecency-with-a-child statute are different “nature of conduct”
offenses). Moreover, due process prevents us from affirming a conviction based
on legal or factual grounds that were not submitted to the jury. Malik v. State,
953 S.W.2d 234, 238 (Tex. Crim. App. 1997). Because Offense Three alleged a
separate offense for indecency by contact with K.R. by touching her genitalia and
because neither the indictment nor the jury charge authorized a conviction
predicated on a second act of this type of touching (because there was no
evidence of a second act of this type presented at trial), we reverse Offense
Three and enter a judgment of acquittal on that charge. See McGlothlin v. State,
260 S.W.3d 124, 133 (Tex. App.—Fort Worth 2008, pet. ref’d) (reversing third of
three counts of sexual assault of a child when evidence did not support third
count and entering judgment of acquittal to third count while affirming counts one
and two).
b. Offense One
Viewing the evidence in a light most favorable to the jury’s verdict, the
evidence demonstrates that S.R. had seen Basilio touch K.R. with his hands on
K.R.’s “wee-wee”; that K.R. testified that Basilio touched her part of the body
where she urinates from, under her clothes with his hand; that K.R. demonstrated
to the jury how Basilio would touch this area of her body; that A.R. testified that
Basilio had touched K.R.’s “front part” as she slept; that the SANE nurse testified
17
K.R. said that Basilio had touched her underneath her clothes with his hand on
her “thing,” which is the term that K.R. used to describe her genitalia; and that the
forensic interviewer testified that K.R. reported that “Carpita,” who was identified
as Basilio, had fondled her under her underwear and that he “touched the part
where she pees from” with his hand.
We conclude that a rational trier of fact could have found beyond a
reasonable doubt that Basilio, with the intent to gratify his sexual desires,
touched K.R.’s genitals. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Dobbs, 434 S.W.3d at 170; see also Gutierrez, 2016 WL 5957023, at *2. Thus
the evidence is sufficient to support the jury’s verdict regarding Offense One, and
we overrule this portion of Basilio’s first, second, and third points.
5. The Conviction of Indecency by Contact with S.R.
Regarding Offense Two, the offense alleged to have happened to S.R., the
jury was charged,
Now, if you find from the evidence beyond a reasonable doubt that [Basilio], . . . on or about the 1st day of October, 2013, did then or there intentionally, with the intent to arouse or gratify [his] sexual desire . . . , engage in sexual contact by touching the genitals of [S.R.], a child younger than 17 years of age, then you will find [him] guilty of the offense of indecency with a child.
As recited above, among other evidence, the jury heard evidence that
Basilio had touched S.R.’s genitals over her clothes, smelled his hand, and
stated that they smelled good. That is sufficient evidence to support that a
rational trier of fact could have found beyond a reasonable doubt that Basilio,
with the intent to gratify his sexual desires, touched S.R.’s genitals. See
18
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170; see also
Gutierrez, 2016 WL 5957023, at *2. We overrule this portion of Basilio’s first,
second, and third points and affirm his conviction of Offense Two for committing
indecency of a child by contact of S.R.
Accordingly, we hold that the evidence is sufficient to support Basilio’s
convictions for Offense One and Offense Two, but we enter a judgment of
acquittal for Offense Three.
C. The Jury Charge
In parts of his first two points, Basilio complains of the trial court’s
amending the jury charge after closing argument. Basilio’s argument is that by
amending the jury charge, the trial court commented on the weight of the
evidence. Specifically, Basilio argues that “the jury actually received an
explanation that acted as a clear comment to the jury that the Court had an
opinion that there were two separate offenses involving the child K.R., when the
evidence did not show more than one single offense against K.R.”
The State argues that the trial court was authorized to correct what it
believed was an erroneous charge. We agree with the State, while noting that
we have already sustained Basilio’s evidentiary-sufficiency objection to Offense
Three, and it is hard for this court to conclude that this argument is not now moot.
But in the interest of justice, we will discuss Basilio’s contentions as if the court’s
amending the jury charge as to Offense Three had impacted Offense One and
Offense Two.
19
The State explained the three lesser included offenses charged (Offense
One, Offense Two, and Offense Three) in its closing argument,
Ladies and gentlemen of the jury, the verdict form on continuous, we’ve done it. We’ve proved it beyond a reasonable doubt. You stop right here. What I want to talk to you about is the verdict forms after this, why they do mean something.
. . . .
And those acts that were discussed in the charge under continuous sexual abuse of a child make up the lesser offenses that start with Offense One. And that lesser offense for Offense One has to do with [K.R.]. When [she] outcried to Charity Henry that [Basilio] put his hands in her pants, put his hands next to her skin, while he’s sitting on a table he put his finger in the hole. That’s aggravated sexual assault of a child. Okay? Now, an offense less than that would be if he had just touched her genitals and that one time that [K.R.] talked about. It’s that simple for Offense One.
Now, Offense Two deals with [S.R]. And there’s a lot with [her], from the end of October all the way until the day before her mother finds her with those lime salts, all that time. You heard about how many times it happened. You heard about what [Basilio] did, the touching of her genitals over the clothes, over and over and over again. You heard the testimony about the grooming, the Takis, the salt, all of those go into Offense Two, all of those times she suffered at his hand.
Now, Offense Three—and including Offense Two is when [A.R.] was in bed and saw [Basilio] touch [S.R.] over the covers. That’s indecency with a child by contact, and that’s what gets us to Offense Three[,] which is indecency with a child, with [K.R.] when she’s underneath the covers, not when she’s talking about when she was in the kitchen and [Basilio] was sitting on the table, great sensory details, peripheral details. Now we’re talking about when [A.R.] sat there and saw the door open. And he told the defense attorney when the defense attorney asked him, How did you know it happened?
I saw it with my own eyes. I saw what he did to my sisters. And the defense attorney went after him, You mean you saw him as he leaned over your sister and leaned over you to touch [K.R.]?
20
[A.R.], brave kid as he was, looked at him and said, Yes, because it happened because I saw it.
. . . .
We have proven to you beyond a reasonable doubt that [Basilio] victimized these girls, that he touched them, that he committed two or more acts of sexual abuse outside of the 30-day period. It started in October and it ended when [K.R.] (sic) was found with the salts. And you know it because it happened to [S.R.] ten times. You know it because it happened to [K.R]. And you know it because [A.R.] told you he saw it with his two eyes. So you’re going to take this verdict form, and it’s on page ten, and you’re going to do what’s right and just sign the bottom one and you’re going to hold him accountable for what he did[.]
The original jury charge charged the jury on continuous sexual abuse of a
young child and then provided,
Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof or if you are unable to agree, then you will next consider whether he is guilty of any of the following offenses.
Offense 1
Now, if you find from the evidence beyond a reasonable doubt that [Basilio], . . . on or about the 1st day of October, 2013, did then or there intentionally or knowingly cause the penetration of the female sexual organ of [K.R.], a child younger than 14 years of age, by inserting his finger into the sexual organ of [K.R.], then you will find [him] guilty of the offense aggravated assault of a child.
Unless you so find from the evidence beyond reasonable doubt, or if you have a reasonable doubt thereof, or if you are unable to agree, you will next consider whether [Basilio] is guilty or not guilty of the offense of indecency with a child.
Now, if you find from the evidence beyond a reasonable doubt that [Basilio], . . . on or about the 1st day of October, 2013, did then or there intentionally, with the intent to arouse or gratify [his] sexual desire . . . , engage in sexual contact by touching the genitals of
21
[K.R.], a child younger than 17 years of age, then you will find [him] guilty of the offense of indecency with a child.
Unless you so find from the evidence beyond reasonable doubt, or if you have a reasonable doubt thereof, you will acquit [Basilio] and say by your verdict “Not Guilty” of this offense.
Offense 2
Now, if you find from the evidence beyond a reasonable doubt that [Basilio], . . . on or about the 1st day of October, 2013, did then or there intentionally, with the intent to arouse or gratify [his] sexual desire . . . , engage in sexual contact by touching the genitals of [S.R.], a child younger than 17 years of age, then you will find [him] guilty of the offense of indecency with a child.
Unless you so find from the evidence beyond reasonable doubt, or if you have a reasonable doubt thereof, you will acquit [Basilio] and say by your verdict “Not Guilty” of this offense.
Offense 3
Now, if you find from the evidence beyond a reasonable doubt that [Basilio], . . . on or about the 14th day of January, 2014, did then or there intentionally, with the intent to arouse or gratify [his] sexual desire . . . , engage in sexual contact by touching the genitals of [K.R.], a child younger than 17 years of age, then you will find [him] guilty of the offense of indecency with a child.
The verdict forms for the lesser included offense charges were labeled
“(Offense 1),” “(Offense 2),” and “(Offense 3).”
The prosecutor, defense counsel, and Basilio all signed an agreement
providing that if the jury wrote “a note requesting any information from the” trial
court, the trial court could “send its answer to the jury room for the jury,” after
giving the parties a chance to object to the responses, without bringing the jury
into open court. Excluding the jury’s note indicating that it had reached a verdict,
the jury sent out four notes during its deliberations. In open court but outside the
22
presence of the jury, the trial court summarized all the notes and the trial court’s
responses to them. The first note requested copies of the jury charge. The
second note asked, “Why does Page 11 state ‘offense of indecency with a child’
for Offense 1 which conflicts with Page 5 which states ‘offense of aggravated
sexual assault’”? The trial court responded by directing the jury to “read the
entire charge concerning ‘Offense 1’ on pages five and six of the charge.”
The jury’s third note stated, “Page 7 refers to [K.R.] under Offense 3 Jan[.]
14. Page 5 refers to [K.R.] under Offense 1 Oct[.] 1. Didn’t [S.R.] testify to the
10X over this period, not [K.R.]”? The trial court explained its actions in response
to the jury’s third note,
We reviewed the charge and realized not having corrected part of the original, there was a misdate of January 14th. It should have said October 1st. With the permission in the presence of counsel, the original charge was retrieved and I handwrote and corrected the October 1st date of January 14th. It was a typo. The correct date was placed on the charge which was returned to the jury and they were advised to correct all of their 11 copies to reflect the accurate date that apparently was a computer glitch. . . .
The jury’s fourth note asked, “What is the difference please between
Offense 1, Part 2, indecency with a child and Offense 3, indecency with a child
because the specific child named in both is [K.R.]”? The trial court responded,
“Offense 1, ‘Part 2’, is a lesser accusation to Offense 1, ‘Part 1.’ Offense 3 is a
separate charge.”
At the end of the trial court’s explanation of all the notes and the
responses, the trial court asked defense counsel if he “agree[d] with the short
23
historical summary concerning the notes and the answers,” and defense counsel
stated that he did.
Article 36.16 of the code of criminal procedure provides,
After the judge shall have received the objections to his main charge, together with any special charges offered, he may make such changes in his main charge as he may deem proper, and the defendant or his counsel shall have the opportunity to present their objections thereto and in the same manner as is provided in Article 36.15, and thereupon the judge shall read his charge to the jury as finally written, together with any special charges given, and no further exception or objection shall be required of the defendant in order to preserve any objections or exceptions theretofore made. After the argument begins no further charge shall be given to the jury unless required by the improper argument of counsel or the request of the jury, or unless the judge shall, in his discretion, permit the introduction of other testimony, and in the event of such further charge, the defendant or his counsel shall have the right to present objections in the same manner as is prescribed in Article 36.15. The failure of the court to give the defendant or his counsel a reasonable time to examine the charge and specify the ground of objection shall be subject to review either in the trial court or in the appellate court.
Tex. Code Crim. Proc. Ann. art. 36.16 (West 2006) (emphasis added).
In addition to the exceptions listed in the statute, courts have interpreted
the statute to allow a trial court to withdraw and correct its charge if convinced
that an erroneous charge has been given. Smith v. State, 898 S.W.2d 838, 855
(Tex. Crim. App.), cert. denied, 516 U.S. 843 (1995); Black v. State, Nos. 03-95
00740-CR, 03-95-00741-CR, 1997 WL 217145, at *1 (Tex. App.—Austin May 1,
1997, no pet.) (not designated for publication).
“[A]ll alleged jury-charge error must be considered on appellate review
regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645,
649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine
24
whether error occurred; if error did not occur, our analysis ends. Id. If error
occurred, whether it was preserved determines the degree of harm required for
reversal. Id. Unpreserved charge error warrants reversal only when the error
resulted in egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim.
App. 2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op.
on reh’g); see Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006). The
appropriate inquiry for egregious harm is fact specific and must be performed on
a case-by-case basis. Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App.
2013); Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).
In making an egregious harm determination, “the actual degree of harm
must be assayed in light of the entire jury charge, the state of the evidence,
including the contested issues and weight of probative evidence, the argument of
counsel and any other relevant information revealed by the record of the trial as a
whole.” Almanza, 686 S.W.2d at 171; see generally Gelinas, 398 S.W.3d at
708–10 (applying Almanza). Errors that result in egregious harm are those “that
affect the very basis of the case, deprive the defendant of a valuable right, vitally
affect the defensive theory, or make a case for conviction clearly and significantly
more persuasive.” Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at
172). The purpose of this review is to illuminate the actual, not just theoretical,
harm to the accused. Almanza, 686 S.W.2d at 174.
Part of Basilio’s argument rests on his theory that the evidence showed
that only one instance of conduct amounting to indecency by contact with her
25
sexual organ, if any, occurred to K.R. and his contention that the “on or about”
date, whether October 1 or January 14, is an element of the offense. It is not.
See Tex. Penal Code Ann. § 21.11(a)(1). As we stated earlier, the State is not
required to allege a specific date in an indictment—the “on or about” language
allows the State to prove any date before the presentment of the indictment.
Sledge, 953 S.W.2d at 255–56. So even if the trial court erred by changing the
“on or about” date in the charge for Offense Three, which we do not hold, that
change had no legal effect because any alleged date prior to indictment being
presented was fair game. See id.; see also Cabral v. State, 170 S.W.3d 761,
764–65 (Tex. App.—Fort Worth 2005, pet. ref’d). We therefore conclude that
error, if any, was harmless as to Basilio’s convictions and sentences for Offense
One and Offense Two. See Marshall v. State, 479 S.W.3d 840, 843–44 (Tex.
Crim. App. 2016). We overrule this portion of Basilio’s first and second points.
In what remains of this point, Basilio contends that by amending the
charge, the trial court commented on the weight of the evidence. Because the
evidence supported the Offense One conviction involving K.R. as the
complainant; because the specific date named in the charge had no legal effect,
as the “on or about” language allowed the State to prove any date before the
presentment of the indictment; and because we have held that Offense Three,
which the court’s changed language impacts, should be reversed and a judgment
of acquittal entered; we hold that any error the trial court committed by replacing
the date of January 14, 2014, with the date of October 1, 2013, in the Offense
26
Three charge is harmless as to Basilio’s convictions and sentences for Offense
One and Offense Two. See Sledge, 953 S.W.2d at 255–56; see also Marshall,
479 S.W.3d at 843–44. We overrule the portions of Basilio’s first and second
points pertaining to his argument that the trial court erred by amending the
charge.
D. Ineffective Assistance
Basilio also raises the specter of ineffective assistance at least twice in his
brief, stating, “It might be noted that trial counsel’s failure to object and his
acquiescence to the change in the charge was arguably ineffective assistance of
counsel” and “putting aside any ineffective assistance issues” before arguing
different points. But Basilio does not develop an argument for ineffective
assistance at all. To the extent that ineffective assistance was raised as an
issue, we overrule it as inadequately briefed. See Tex. R. App. P. 38.1(i); Lucio
v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011) (citing cases), cert. denied,
132 S. Ct. 2712 (2012).

Outcome:

Having held that the trial court erred by allowing two convictions regarding K.R. when the evidence supported only one, we reverse the trial court’s judgment for Offense Three and render a judgment of acquittal on that charge. Having overruled the remainder of Basilio’s three points, we affirm the trial court’s judgments for Offense One and Offense Two.

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