ESTEBAN PELCASTRE v. THE STATE OF TEXAS (2022)

CONCURRING OPINION

Affirmed and Majority and Concurring Opinions filed October 18, 2022.

I join the majority's judgment, and I agree with the majority's analysis as to Issue 1—evidentiary sufficiency—and Issue 3—ineffective assistance of counsel. My only disagreement is with respect to the majority's analysis of Issue 2—charge error. I disagree with the majority's conclusion that the charge language in question is unclear.

In issue 2, appellant argues the jury charge was erroneous because it allowed the jury to convict him on a finding that two or more acts of sexual abuse occurred at any time over a period that was more than 30 days in duration, regardless of whether the acts themselves were separated by the time period required by the statute. See Tex. Penal Code Ann. § 21.02(b)(1) (stating that a person 17 years of age or older commits the offense of continuous sexual abuse of a young child if, “during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse” against a child younger than 14 years of age).

In determining whether there is reversible error in the jury charge, this court should first decide whether error exists, and if error exists, then this court should determine whether the defendant was harmed. See Navarro v. State, 469 S.W.3d 687, 698 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd). The charge in the instant case states, in pertinent part:

Our law provides that a person commits an offense if during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and, at the time of the commission of each of the acts of sexual abuse, the person was 17 years of age or older and the victim is a child younger than 14 years of age, regardless of whether the actor knows the age of the victim at the time of the offense.

․

In order to find the defendant guilty of the offense of continuous sexual abuse of a child, you are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. However, in order to find the defendant guilty of the offense of continuous sexual abuse of a child, you must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse.

Now, if you find from the evidence beyond a reasonable doubt that in Harris County, Texas, the defendant, Esteban Pelcastre, theretofore on or about the 12th day of December, 2017 through on or about the 16th day of March, 2018, did then and there unlawfully, during a period of time of thirty or more days in duration, commit at least two acts of sexual abuse against a child younger than fourteen years of age including an act constituting the offense of aggravated sexual assault of a child, committed against [complainant] on or about December 12, 2017, and an act constituting the offense of aggravated sexual assault of a child, committed against [complainant] on or about March 16, 2018, and the defendant was at least seventeen years of age at the time of the commission of each of those acts, then you will find the defendant guilty of continuous sexual abuse of a child, as charged in the indictment.

(emphasis added).

Appellant argues that the emphasized phrase “during a period of time of thirty or more days in duration” could be read to simply describe the time period at issue in the indictment, as opposed to requiring that the acts at issue occurred during a period that is thirty or more days in duration. See Tex. Penal Code Ann. § 21.02(b). The jury charge language tracks the relevant portions of Penal Code section 21.02, almost verbatim. The majority concludes that “it is unclear as to whether the phrase ‘during a period of time of thirty or more days in duration’ modifies the period of time alleged in the indictment or the commitment of two or more acts of sexual abuse.” Ante at 9. I disagree. The instruction clearly provided that two or more acts of sexual abuse, if the jury found they occurred, must have occurred during a period thirty or more days in duration to support a conviction, and that the jury must unanimously so find. Contrary to appellant's assertions, the jury could not properly have convicted appellant under this charge if the jury determined that appellant committed multiple acts of sexual abuse, all within a period of less than thirty days. Instead, according to the charge, jurors could only convict if these acts of sexual abuse occurred during a period of thirty or more days in duration. See Tex. Penal Code § 21.02(d). In sum, the charge's language tracks the statutory language and could have no “variable meaning in the eyes of the jury.” See Navarro, 469 S.W.3d at 698–99 (explaining that, although generally, a charge tracking statutory language is not error, “the jury must understand which law to apply, and the wording of a statute may not be enough ․ if the statutory text on which it is based has a variable meaning in the eyes of the jury”). Therefore, I would conclude that the charge language was not erroneous and not reach the harm issue.

As the majority notes, the charge in today's case is virtually identical to the charge that another panel of this court concluded did not contain error. See Moreno v. State, No. 14-18-00113-CR, 2019 WL 2000905, at *3 (Tex. App.—Houston [14th Dist.] May 7, 2019, pet. ref'd) (mem. op., not designated for publication). Other sister courts of appeals have reached similar conclusions. See Hernandez-Silva v. State, No. 03-19-00219-CR, 2020 WL 4726632, at *8 (Tex. App.—Austin Aug. 14, 2020, pet. ref'd) (mem. op. not designated for publication); Knowles v. State, No. 04-12-00180-CR, 2013 WL 1149063, at *3 (Tex. App.—San Antonio Mar. 20, 2013, pet. ref'd) (mem. op. not designated for publication). All of these opinions are unpublished and therefore none of them has any precedential value. See Tex. R. App. P. 47.7(a). In Turner v. State, the Amarillo Court of Appeals determined that language very similar to the charge in today's case contained error. See Turner, 573 S.W.3d 455, 462 (Tex. App.—Amarillo 2019, no pet.). The issue of whether a charge like the charge in today's case is clear and free of error has also divided the panel in today's case. I respectfully submit that the Court of Criminal Appeals should resolve the issue of whether charge language like that in today's case contains error, either by granting review in today's case or in an appropriate case in the future.

Randy Wilson Justice