SMITH v. STATE (2026)

OPINION

A jury found appellant guilty of continuous sexual abuse of a child—his stepdaughter—and assessed a punishment of confinement for life. See Tex. Penal Code § 21.02. Appellant contends that the evidence is insufficient to support his conviction, the assessed court costs are incorrect, and the inclusion of a fine in the judgment is invalid.

We hold that the evidence is sufficient and court costs are correct, but the fine must be deleted from the judgment. We note also that the judgment incorrectly recites the punishment assessed by the jury. Thus, we modify the judgment by deleting (1) the fine and (2) “without parole” from the description of punishment.

The judgment is affirmed as modified.

I. Sufficiency of the Evidence

In his first two issues, appellant contends that the evidence is insufficient to support his conviction because the complainant's testimony was “so vague as to leave the fact finder wondering what acts were actually committed and when.” He contends that the evidence raises a “real question whether the incidents occurred over the requisite 30-day timeframe.”

A. Standard of Review

In determining whether evidence is sufficient to support a conviction, a reviewing court must consider all the evidence in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Turley v. State, 691 S.W.3d 612, 617 (Tex. Crim. App. 2024). The jury is the sole judge of the credibility of witnesses and the weight to be attached to their testimony. Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016).

We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). For the offense of continuous sexual abuse of a child, the State must prove that the defendant committed two or more acts of sexual abuse during a period that was thirty or more days in duration while the complainant was younger than fourteen years of age and appellant was seventeen years of age or older. See Tex. Penal Code § 21.02(b). An act of sexual abuse includes aggravated sexual assault, as the State alleged in its indictment. See id. § 21.02(c)(4). A person commits aggravated sexual assault if the person intentionally or knowingly causes by any means the penetration of the sexual organ of a child younger than fourteen years of age. See id. § 22.021(a)(1)(B)(i), (a)(2)(B).

A jury is not required to agree unanimously on which acts of sexual abuse were committed by the defendant or the exact dates when those acts were committed. Id. § 21.02(d). The jury need only agree that “the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse.” Id.

B. Evidence

The complainant testified that appellant, whom she ¹ had believed to be her father, sexually abused her from the age of thirteen to fifteen—until she made an outcry to her aunt. The complainant testified that the first instance of abuse occurred late at night when appellant called her over to his computer desk. She testified, “He took off my pants and underwear and then he turned me around and he stuck his fingers inside of my vagina.” She testified that this incident happened when she was thirteen years old, and it happened “closer” rather than farther away from her thirteenth birthday. Although the complainant testified about other distinct acts of sexual abuse that occurred when she was fourteen or older, she could not recall another specific instance of sexual abuse when she was thirteen. But, she testified that appellant put his fingers inside her vagina “[t]oo many times to count” and “every couple of weeks to a month” while she was thirteen:

Q. Can you tell me about another time when you were 13 that you recall the Defendant putting his fingers in your vagina?

A. Not specifically.

Q. Do you know how many times it would have happened between your 13th and 14th birthday?

A. Too many times to count.

Q. You said it became more continuous?

A. Yes, ma'am.

Q. Between 13 and 14 did they happen all together and nothing happened for a long time? I'm trying to understand how frequently these things were happening?

A. I think it was every couple of weeks to a month.

C. Analysis

We understand appellant's argument to be a challenge to the sufficiency of the evidence to support a finding that he committed two or more acts of sexual abuse during a period that was thirty or more days in duration while the complainant was younger than fourteen.

The complainant's testimony, standing alone, may be sufficient to support a conviction for continuous sexual abuse of a child. See, e.g., Garrett v. State, 693 S.W.3d 490, 494 (Tex. App.—Houston [14th Dist.] 2023, pet. ref'd). The complainant's testimony about the acts of sexual abuse—that appellant placed his fingers inside her vagina too many times to count—sufficiently established the elements for aggravated sexual assault occurring two or more times. See Tex. Penal Code § 22.021(a)(1)(B)(i), (a)(2)(B).

The complainant testified that the first incident of abuse happened “closer” rather than farther away from her thirteenth birthday, and the abuse reoccurred “[t]oo many times to count ․ every couple of weeks to a month.” In light of this testimony, a jury could find that the abuse began less than six months after her thirteenth birthday and repeated at least five more times before her fourteenth birthday. See Witcher v. State, 638 S.W.3d 707, 710 (Tex. Crim. App. 2022) (sufficient evidence of abuse occurring over a period of at least thirty days based on testimony that abuse began when her brother went to jail and ended on July 28, coupled with testimony that her brother went to jail “give or take” or “around” June 10; jury could infer that abuse started at most a few days after June 10 rather than sixteen or more days later); Garrett, 693 S.W.3d at 493, 496–97 (sufficient evidence based on testimony that the abuse began in “early November” and ended “at the beginning of December” but not during the first week of December; jury could infer abuse began as early as November 1 and ended after December 7); see also Wishert v. State, 654 S.W.3d 317, 322–23, 329 (Tex. App.—Eastland 2022, pet. ref'd) (sufficient evidence when the complainant testified that she was born in 2003 and that the defendant sexually abused her “almost every time” she spent the night at his house during the summer of 2017 and following school year when she “frequently” visited and was “around thirteen or younger,” although she could not recall specific dates or the number of instances of abuse); Baez v. State, 486 S.W.3d 592, 594–95 (Tex. App.—San Antonio 2015, pet. ref'd) (sufficient evidence when the complainant did not give specific dates of abuse but testified that the first incident happened when she was in sixth grade and “12 to 14” years old, and he touched her “more than ten times,” “often,” and “more than once a week”).

Contrary to appellant's assertion, the evidence is not “so vague as to leave the fact finder wondering what acts were actually committed and when.” To the extent appellant attempts to attack the complainant's credibility by noting her lack of “autobiographical memories” or “vivid, visceral kind of explanations or descriptions” of events, or her incorrect reading of the date on a document,² we must defer to the jury's role to judge the credibility and weight of witness testimony. See, e.g., Garrett, 693 S.W.3d at 495—97 (sufficient evidence despite the complainant's inability to recall the details of one instance of abuse, vagueness about exact dates of abuse, and testimony that her memory was blurry); Bargas v. State, 252 S.W.3d 876, 886–89 (Tex. App.—Houston [14th Dist.] 2008, pet. ref'd) (sufficient evidence despite inconsistencies in the complainant's testimony about where and when the abuse occurred). Allegations that a witness was not credible “play no part in our review of the sufficiency of the evidence.” Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016).

Considering all of the evidence in the light most favorable to the verdict and the reasonable inferences therefrom, a rational fact finder could have found beyond a reasonable doubt that appellant committed two or more acts of sexual abuse during a period that was thirty or more days in duration while the complainant was younger than fourteen years of age. See Tex. Penal Code § 21.02(b).

Appellant's first and second issues are overruled.

II. Court Costs

In his fourth issue, appellant contends that the $185 state consolidated court cost and $100 local consolidated court cost are invalid because his offense was committed before January 1, 2020, the effective date of an amendment to the Cost Act.

After appellant filed his brief, the Court of Criminal Appeals clarified that court costs should be calculated based on the date of conviction rather than the date of the offense. See Bradshaw v. State, 707 S.W.3d 412, 417–20 (Tex. Crim. App. 2024). This court has rejected complaints similar to appellant's for the same reason. Ikemere v. State, 716 S.W.3d 179, 184 (Tex. App.—Houston [14th Dist.] 2025, no pet.). The $185 state consolidated court cost and $100 local consolidated court cost are correct. See id.

Appellant's fourth issue is overruled.

III. Judgment Modifications

In his third issue, appellant asks this court to strike a $100 “child abuse prevention fine” from the trial court's written judgment because it was not orally pronounced at the time of sentencing. The State agrees the fine should be struck because the amendment to the statute authorizing the fine does not apply to appellant's conviction for an offense committed before the bill's January 1, 2020 effective date. See Act of May 23, 2019, 86th Leg., R.S., ch. 1352, §§ 2.39–2.40, 5.01, 5.04, 2019 Tex. Gen. Laws 3981, 4006, 4035 (amending Tex. Code Crim. Proc. art. 102.0186).

A. Legal Principles for Modifying Judgments

This court has the power to modify the trial court's written judgment of conviction to make the record “speak the truth.” Carmona v. State, 610 S.W.3d 611, 618 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (citing French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992)). If the trial court's judgment improperly reflects the findings of the jury, it is proper for this court to modify the judgment to reflect the truth. Id. The authority of appellate courts to reform incorrect judgments is not dependent upon the request of any party, nor does it turn on whether the party preserved error in the trial court. See id.

A trial court must orally pronounce a sentence, including fines, in the defendant's presence. Abad v. State, No. 14-24-00818-CR, 2025 WL 3759507, at *4 (Tex. App.—Houston [14th Dist.] Dec. 30, 2025, no pet. h.) (citing Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011)); see Tex. Code Crim. Proc. art. 42.03, § 1(a). Generally, when there is a conflict between the oral pronouncement and the sentence in the written judgment, the oral pronouncement controls. Taylor v. State, 131 S.W.3d 497, 500, 502 (Tex. Crim. App. 2004) (court of appeals correctly deleted fine from written judgment when the trial court, acting as the fact finder, omitted any fine from its oral pronouncement).

There are at least two caveats to the general rule that this court may modify a written judgment when it conflicts with the trial court's oral pronouncement. First, the oral pronouncement does not control if it conflicts with the jury's lawful verdict. See Ette v. State, 559 S.W.3d 511, 516–17 (Tex. Crim. App. 2018) (holding that a lawful fine assessed by the jury could be imposed despite the trial court's failure to orally pronounce it). Second, the oral pronouncement does not control if it would result in an illegal sentence. See Burton v. State, 694 S.W.3d 892, 893 & n.1 (Tex. App.—Houston [14th Dist.] 2024, pet. ref'd) (noting that the written judgment correctly recited the defendant's automatic sentence of life without parole when the trial court's oral pronouncement of “life” was an illegal sentence for capital murder); Tufele v. State, 130 S.W.3d 267, 273–74 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (“No authority dictates that the written judgment, which accurately reflects the punishment assessed by the jury, should be reformed to contain the illegal portion of the sentence announced by the trial court.”).

B. Fine

Here, the jury did not assess a fine, and the trial court did not orally pronounce one, but the written judgment includes a $100 “child abuse prevention fine.” See Tex. Code Crim. Proc. art. 102.0186(a) (“A person convicted of an offense under Section 21.02 ․ shall pay a fine of $100 on conviction of the offense.”). The statute mandating this fine does not apply to appellant's offense, which was committed at the latest on the day before the complainant turned fourteen in 2018. See Act of May 23, 2019, 86th Leg., R.S., ch. 1352, §§ 2.39–2.40, 5.01, 5.04 2019 Tex. Gen. Laws 3981, 4006, 4035 (reclassification of $100 court cost as a “fine” applies to offenses committed on or after January 1, 2020, under the bill's “transition and effective date” provision); see also Bradshaw, 707 S.W.3d at 421 (Yeary, J., concurring) (agreeing costs should be assessed based on date of conviction under Tex. Gov't Code § 51.608, but “fees and fines” would still be governed by the bill's “transition and effective date” provision). Thus, the jury's verdict and the court's oral pronouncement omitting the fine was a legal sentence.³

Under these circumstances, we modify the judgment to delete the fine. See, e.g., Abad, 2025 WL 3759507, at *4; McCarter v. State, 722 S.W.3d 138, 144–45 (Tex. App.—Houston [1st Dist.] 2025, no pet.). Appellant's third issue is sustained.

C. Without Parole

We note that the written judgment recites appellant's punishment as “life without parole,” but the jury's verdict and the trial court's oral pronouncement were for a sentence of “life.”

The offense of continuous sexual abuse of a child with no enhancements, as here, is a “felony of the first degree, punishable by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.” Tex. Penal Code § 21.02(h); see also id. § 12.32 (general punishment for first degree felony). The distinct punishment of “life without parole” is reserved for capital felonies, see id. § 12.31, certain organized crimes, see id. § 71.02(b)(1), and certain habitual offenders, see id. § 12.42(c)(4). “In Texas, a life sentence does not mean life without parole.” Colburn v. State, 966 S.W.2d 511, 516 (Tex. Crim. App. 1998); see also, e.g., Ex parte Maxwell, 424 S.W.3d 66, 76 (Tex. Crim. App. 2014) (remanding for further sentencing proceedings “to permit the factfinder to assess applicant's sentence at (1) life with the possibility of parole ․ or (2) life without parole”).

Now, appellant is ineligible for parole because he is serving a sentence for continuous sexual abuse of a child. See Tex. Gov't Code § 508.145(a) (“An inmate is not eligible for release on parole if the inmate is under sentence of death, serving a sentence of life imprisonment without parole, or serving a sentence for any of the following offenses under the Penal Code: ․ Section 21.02 ․”). This ineligibility for parole stems from the Government Code and the Legislature's authority to enact parole laws. See Tex. Const. art. IV, § 11(a); see also Ex parte Moussazadeh, 361 S.W.3d 684, 689–90 (Tex. Crim. App. 2012) (noting that parole eligibility laws are “not subject to alteration, absent legislative amendment”). Appellant is serving a sentence for an offense under Section 21.02, but he is not “serving a sentence of life imprisonment without parole” because the jury did not assess his punishment as “life without parole” under the Penal Code. See Tex. Penal Code § 12.01(a) (“A person adjudged guilty of an offense under this code shall be punished in accordance with this chapter and the Code of Criminal Procedure.”), quoted in Burg v. State, 592 S.W.3d 444, 450 (Tex. Crim. App. 2020) (rejecting claim that sentence was illegal when jail term and fine fell within range of “punishment ‘in accordance’ with Chapter 12 and the Code of Criminal Procedure”).

Accordingly, we agree with our sister courts that have modified written judgments to delete “without the possibility of parole” for offenses deemed ineligible for parole under Section 508.145(a) of the Government Code when the jury assessed a sentence of “life.” See Skinner v. State, No. 05-17-00153-CR, 2018 WL 3545023, at *11 (Tex. App.—Dallas July 24, 2018, pet. ref'd) (mem. op., not designated for publication); Cruse v. State, No. 01-13-00077-CR, 2014 WL 3607250, at *4–5 (Tex. App.—Houston [1st Dist.] July 22, 2014, pet. ref'd) (mem. op., not designated for publication). Because the sentence of “life” is not an illegal sentence for this offense, we will modify the trial court's written judgment to reflect the jury's verdict and trial court's pronouncement by striking the phrase “without parole.” See Sosa v. State, No. 05-19-00868-CR, 2021 WL 1084639, at *6–7 (Tex. App.—Dallas Mar. 22, 2021, pet. ref'd) (mem. op., not designated for publication) (modifying judgment to delete “without parole” to reflect the jury's verdict of “life,” which was within the statutory range for Section 21.02).

IV. Conclusion

Appellant's first, second, and fourth issues are overruled. His third issue requesting the fine be struck from the judgment is sustained. On the court's own motion, the judgment is modified to reflect appellant's punishment of confinement for “life.” Accordingly, the judgment is modified as follows:

• On Page 1 of the judgment under “Fines:” the amount of “$100” is deleted.

• On Page 1 of the judgment under “Punishment and Place of Confinement:” the phrase “without parole” is deleted.

• On Page 2 of the judgment under “Fines Imposed Include” the following line is deleted: “[X] child Abuse Prevention Fine (Art. 102.0186, Code Crim. Proc.) $100.”

The trial court's judgment is affirmed as modified.

FOOTNOTES

1.   By the time of trial, the complainant was using he/him pronouns and identified as a man. During the period of abuse, the complainant used she/her pronouns and identified as a girl. For consistency and ease of reading, we use she/her pronouns throughout this opinion.

2.   Appellant contends that the complainant testified that her thirteenth birthday was in 2013. Rather, she testified that she received a cell phone for her thirteenth birthday, and she testified further that she signed a “social media rules” document dated on her birthday in 2013. The document, Exhibit 2, is dated 2017. The complainant was born in 2004.

3.   We note that the failure to assess a mandatory fine generally renders a sentence illegal. See Saldivar v. State, 542 S.W.3d 43, 48 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd). We do not determine in this case whether the fine under Article 102.0186 falls within this general rule.

Ken Wise, Justice