Petition for Writ of Certiorari — Miguel Angel Ortiz, Petitioner v. Texas

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As of: November 14, 2024 7:52 PM Z

Ortiz v. State

Court of Appeals of Texas, Thirteenth District, Corpus Christi - Edinburg

May 9, 2024, Delivered; May 9, 2024, Filed

NUMBER 13-23-00082-CR

Reporter

2024 Tex. App. LEXIS 3216 *; 2024 WL 2066821

MIGUEL ANGEL ORTIZ, Appellant, v. THE STATE OF

TEXAS, Appellee.

Notice: PLEASE CONSULT THE TEXAS RULES OF

APPELLATE PROCEDURE FOR CITATION OF

UNPUBLISHED OPINIONS.

Outcome

Convictions affirmed in part, vacated in part.

Subsequent History: Petition for discretionary review

Counsel: For Miguel Angel Ortiz, Criminal - Appellant:

H°n’ R°land° Garz*'

refused by In re Ortiz. 2024 Tex. Crirrt. Aon / fv/.c roa

(Tex. Crim. Add., Aug. 21. 2024)

For The State of Texas, Criminal - State of Texas: Hon.

Toribio 'Terry" Palacios, Hon. Rodolfo Martinez Jr.

Prior History: [*1] ON APPEAL FROM THE 275TH

DISTRICT COURT OF HIDALGO COUNTY, TEXAS-

Jud9es: Before Justices Benavides, Tijerina, and Silva.

Memorandum Opinion by Justice Benavides.

Core Terms

Opinion by: GINA M. BENAVIDES

sexual abuse, convictions, indecency, continuous

sexual abuse, jury charge, duration, sexual contact,

aggravated sexual assault, exposure, offenses, counts,

predicate offense, trial court, last act, egregious,

genitals, felony

Opinion

Case Summary

,

acts of sexual abuse that defendant committed against

victim during the period of continuous abuse, as per

Tex. Penal Code Ann. S 21 02

MEMORANDUM OPINION

Memorandum Opinion by Justice Benavides

A jury convicted appellant Miguel Angel Ortiz of

committing seven felony offenses against the same

Overview

complainant: one count of continuous sexual abuse of a

HOLDINGS niTho I* ,

. ...

young chi,d’ a first-degree felony; three counts of

conviction*? fnIinti,? *

“T

"0t err ,n lts aggravated sexual assault of a child, also first-degree

conv.chons for continuous sexual abuse of a young child felonies; two counts of indecency with a child by sexual

iurv chJmpT

T l hI fP°SUre bSCaUSe the

second-degree felonies; and one <Lnt of

ry charge faithfully tracked the statutory duration indecency with a child by exposure, a third-deqree

language and the tnal court satisfied its obligation to felony. See Tex. Penal Cnrie Ann. SS 21 02(h)(9\w

instruct the jury on the law applicable to the case under 22.021(a)(1)(B). 21.11(a)(1). (a)(2)(A). Ortiz raises two

T Pr°C' 1 ^ f14'' [2]'™e trial

issues on aPPeal: (1) the Jury charge for continuous

M d .. ,

Jhlr_fe n°nvict,°ns for aggravated sexual sexual abuse, which Ortiz failed to object to at trial

assault of a chHd and two convictions for indecency with contained a fundamental error that also resulted in

convirtinne ^ f SSXUa

because defendant’s

convictions for aggravated sexual assault and

indecency with a child by sexual contact were based on

egregious harm1 ; and (2) his convictions for aggravated

_______ ______________ _

1 Citing Doyle v. State, 631 S.W.2d 732 (Tex. Crim. App.

appendix-a

A-1

2024 Tex. App. LEXIS 3216, *1

*'

k

sexual assault and indecency with a child by sexual

contact constitute double-jeopardy violations. The State

concedes the second [*2] issue. We affirm the

convictions for continuous sexual abuse and indecency

with a child by exposure and vacate Ortiz's other five

convictions.

I. Background

In 2017, Ortiz was indicted for continuous sexual abuse

of a child under the age of fourteen for allegedly

committing two or more acts of sexual abuse against

Veronica2 during a period that began on January 1,

2012, and ended on September 30, 2016. The

indictment generally alleged that the acts of sexual

abuse included aggravated sexual assault of a child and

indecency with a child by sexual contact.

The indictment also included six additional counts

against Ortiz for other sexual offenses allegedly

committed against Veronica. Three of the counts

alleged different types of aggravated sexual assault of a

child (Ortiz contacting Veronica's genitals with his

mouth, and Ortiz penetrating Veronica's mouth with his

genitals), two of the counts alleged different types of

indecency with a child by sexual contact (Ortiz touching

Veronica's genitals, and Ortiz causing Veronica to touch

his genitals), and one count alleged indecency with a

1980), Ortiz suggests on appeal that fundamental error is a

separate and distinct analysis from the egregious harm

standard announced several years later in Almanza v. State,

686 S.W.2d 157 (Tex. Crim. App. 1984). He treats them as

"alternative" standards for determining reversible jury-charge

error, implying that a fundamental error automatically requires

reversal without regard to the nature of the harm. However,

seeking to clarify the standard of review for unobjected-to jurycharge error, the Texas Court of Criminal Appeal explained in

Almanza that showing error in the jury charge is only the first

step; to obtain a reversal, the record must also show that

appellant was egregiously harmed by the error. 686 S.W.2d at

171-74. in other words, an error in the jury charge will only be

deemed "fundamental" if the appellant was egregiously

harmed by the error. Id. at 172 (explaining that fundamental

error must involve 'egregious harm' in trial"). Accordingly, we

will review Ortiz's claim of fundamental jury-charge error under

Almanza and its progeny. See Olivas v. State. 202 S.W.3d

137. 145 (Tex. Crim. Add. 2006) ("The appropriate standard

for all errors in the jury-charge, statutory or constitutional, is

that set out in Almanza").

2 To protect the identity of the complainant, we refer to her by

the pseudonym given to her in the indictment. See Tex. Code

Crim. Proc. Ann, art. 58 102(a)

Page 2 of 6

child by exposure (Ortiz exposing his genitals to

Veronica). Each of these offenses was alleged [*3] to

have been committed during the period of continuous

abuse described above.

Veronica, sixteen years old at the time of trial, testified

that Ortiz, her mother's ex-boyfriend, began sexually

abusing her when she was in the first or second grade,

and the abuse continued until she was in the fourth

grade. She described various sexual acts that Ortiz

compelled her to perform during this period, including

touching his penis and fellatio. She also said there were

times when he would touch her vagina with his hand or

perform cunnilingus on her.

After the parties closed, a charge conference occurred

off the record. There is no record of Ortiz objecting to

the continuous sexual abuse jury charge, which

included the following language:

1.

A person cdmmits the ofFense of Continuous Sexual

Abuse of a Child if:

(1) During a period that is 30 days or more 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

(2) At the time of the commission of each of the

acts of sexual abuse, the actor was 17 years of age

or older and the victim is a child younger than 14

years of age.

4.

You are instructed [*4] that members of the jury

are not required to agree unanimously on which

specific acts of sexual abuse, if any, were

committed by the Defendant or the exact date when

those acts were committed, if any. The jury must

agree unanimously that the Defendant, during a

period that was 30 or more days in duration,

committed two or more acts of sexual abuse as that

term has been previously defined.

5.

Now if you find from the evidence beyond a

reasonable doubt that the Defendant, MIGUEL

ANGEL ORTIZfJ did then and there, in Hidalgo

A-2

Page 3 of6

2024 Tex. App. LEXIS 3216, *4

W

“

County, Texas, during a period that was 30 or more

days in duration, to-wit: from

day of January, 2012. <o on or

'£££

the first and last acts of sexual abuse committed by the

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^" the penal code

- a c«, then you - flnd to. Defend^

of the offense of Continuous Sexual Abuse of a

Child as charged in this indictment.

The jury also received separate charges on the other six

counts.

2S,T1bamen»eday

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With a child by sexual contact offense and ten years'

imprisonment for the indecency with a child by exposure

offense. The trial court entered a separate judgment of

conviction on each count and ordered the sentences to

run concurrently.

Ortiz filed a motion for new trial making the same

arguments he now presents on appeal. During the

hearing, the State conceded that there were doublejeopardy violations but suggested that it would be "more

proper" to let this Court sort them out on appeal. The

trial court denied the motion, and this appeal ensued.

II. Jury Charge Error

Ortiz first contends that the jury charge for continuous

sexual abuse contained a fundamental error that

resulted in egregious harm because it "authorized a

conviction on a set of facts that do not constitute an

offense.

Specifically, Ortiz complains that the

application paragraph allowed “the jury to find him guilty

so long as two or more acts of sexual abuse occurred

between the years alleged [*6] regardless of whether

the acts occurred at least 30 days apart." Although the

application paragraph includes the statutory "during a

period that was 30 or more days in duration" language,

Ortiz argues that this language standing alone is

insufficient to convey the intended meaning of the

duration element. He notes that the trial court did not

use the suggested clarifying language from the Texas

Pattern Jury Charge: "With regard to element 2, you

must all agree that at least thirty days passed between

A. Standard of Review & Applicable Law

^

„

ApP' 901 ?) (cleaned UP>- A iurY charge

S?tamS an abstract P°rtion and an

abb' tl0n ^ Paragraph. "The abstract paragraphs

6 aS ! 9 OSSary to he|P the jury understand the

meaning of concepts and terms used in the application

paragraphs of the charge." Crenshaw y, State 37Ft

—W-3d 460< 466 (Tex- Crim. Add. 201?) "The

application Paragraph is what explains to the jury, in

terms, how to apply the law to the facts of the

case“ ^?a^irre v. State. 394 S.W.3d 526. 530 (Tev

- ^ App' 2013>-

Alleged jury-charge error involves a two-step analysis:

"First, we determine whether the charge is erroneous. If

it is, then we must decide whether the appellant was

harmed by the erroneous charge." Alcoser v. .State as?

—l^"3Qf 160' 165 fTex- Crim. Add. 2022). To riPtem»no

wittier jury charge error occurred, a reviewing court

”must examine the charge as a whole instead of a

series of isolated and unrelated statements." Vasauez.

—S.W.3d at 366 (quoting Dinkins v. State. ft94

§w-2d 330, 339 (Tex. Crim. Add, 1995IV Wh^n th«

aPPellant fails to timely object to the alleged error, as

occurred here, the record must show that the appellant

was e9ragiously harmed by the error. Alcoser fifil

—'-W.3d at 165. "An erroneous jury charge is egregiously

harmful it affects the very basis of the case, deprives

the accused of a valuable right, or vitally affects a

defensive theory." Id. Egregious harm is a “high and

d'^cu^ standard" to meet. Reeves v. State. 42Q S.W.3d

(Tex. Crim. Add. 2013). Neither party bears

the burden of proving or disproving harm on appeal,

^larreal v- State. 453 S.W.3d 42Q 433 (Tex Crim

Agp. 2015}. Instead, we review the record for the

A-3

Page 4 of 6

2024 Tex. App. LEXIS 3216, *7

J

following factors: [*8] (1) the entirety of the 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 tnal record, id

must occur thirty or more days apart"). We are bound by

the principle of horizontal stare decisis to once again

conclude that the statutory language in this jury charge

was sufficient to inform the jury about the contours of

the duration element. See Mitschke v. Bormmeo. 643

S.W.3d 251, 257 (Tex, 2022) ("If one appellate panel

To establish continuous

, sexual abuse of a young child, decides a case, and another panel of the same court

the State rnust prove four elements: (1) the defendant differently- resolves a materially indistinguishable

committed] two or more acts of sexual abuse," (2) question in .Contravention of a holding in the prior

"n9 * P®n

! f ,S 30 or more days in duration>" decision,: the secondhand has violated the foundational

and at the time of the commission of each of the acts of rule of stare decisis "<)

sexual abuse," (3) "the [defendant was] 17 years of age ■

.

or older," and (4) “the victim [was] a child younger than "Following the law as it [*10] is set out by the Texas

14 years of age." Tex. Penal Code Ann. $ 21.02(b). To Legislature will not be deemed error on the part of a trial

satisfy the second element, the proof must establish judge." Martinez v. State. 924 S.W.2d 693. 699 (Tex

"there [were] at least 28 days between the day of'the Crim. App. 1996): Riddle v. State. 888 S.W.2d 1, 8 (Tex.

first act of sexual abuse and the day of the last act of Crim. Add. 1994): Duffy v. State. 567 S.W.2d 197. 204

sexual abuse." Smith v. State. 340 S.W,3d41. 5f (Tex (Tex. Crim. Add. 1978): see Casevv. State. 215S.W.3rt

Houston f1st Dist.l 2011, no pet): see Turner v. 870. 887 (Tex Crim. Add. 2007) (holding that charge

State, 573 S.W.3d 455. 461 (Tex. Add.—Amarillo 201'9. tracking language of statute was not erroneous and

ng_BeL±, Pelcastre v. State. 654 S.W.3d 579. 586 (Tex, "declinpng] appellant’s invitation to act as a super&BP-—Houston (14th Dist.12022, pet, refd). "[MJembers legislature and rewrite [the statute]"). Here, as in Perez

of the jury are not required to agree unanimously on and Chavez, the jury charge faithfully tracked the

which specific acts of sexual abuse were committed by statutory duration language, and thus, the trial court

the defendant or the exact date when those acts were satisfied its obligation to instruct the jury on the law

committed," so long as they unanimously agree that 'the applicable to the case. See Tex. Code Crim. Proc. Ann

defendant, during a period that is 30 or more-days in art- 36:14: Perez. 2024 Tex. Ann 1FXIS 1284. 2024 WL

duration, committed two or more acts of sexual abuse." '715326. at *7: Chavez. 2023 Tex. Aon I fyir en'i'i

Tex. PenaI Code Ann. $ 21.02(d),

2023 :WL 5486232. at.*3: Lewis v. State. No, 14-2100691-CR. 693 S.W.3d 453-. 2023 Tex, Aon. IFYIS

5668. 2023 WL 4873306. at *7 (Tex. ADD.—Hnuxtnn

B. Analysis

I

Last term, in Chavez v. State. No. 13-22-00551-CR.

2023 Tex. App. LEXIS 6533. 2023 WL 5486232. at *2-4

(Tex. Add.—Corpus Christi—Edinburg Aug. 24. 2023.

0.° Pet ) (mem. op.,

, [*9] not designated for publication),

we considered the same challenges to a virtually

identical jury charge and found no error. This term, in

State;-p- 13-22-°0292-CR, 689 S.W.3d 369-,

24 Tex. App,, LEXIS 1284. 2024 WL 715326, at *5-7

(Tex. App.—Corpus Christh-Edinburq Feb. 22, 2024,

£3 Pet-h we were again confronted with a virtually

identical jury charge and found no error. But see 2024

Tex. Add. LEXIS 1284. fWLl at *9-11 (Contreras, C.J.,

concurring) (finding error because the statutory

language "does not sufficiently inform the jury of the

requiremenf "that there must be ’at least 28 days’

between the days of the first and last acts of abuse," but

ultimately concluding the error was harmless); Turner,

573 S.W.3d at 462-63 (finding a charge that tracked the

statute to be erroneous because "the express language

used does not make it clear that the first and last acts

(14th Dist.l Aug. 1. 2023, pet, refd) (finding no error

where the jury charge tracked the statutory duration

language). And as we said in Perez and Chavez, the

addition of the "to-wit" language in this charge did not

nullify the duration element; rather, "the timeframe

provided in the application paragraph merely ’explained

to the jury, in concrete terms, how to apply the law to

the facts of the case." Perez. 2024 Tex. Ann / fy,s

1284, 2024 WL 715326. at *6 (cleaned up) (quoting

Yzaguirre. 394 S.W.3d at 530Y. Chavez. 2023 Tex. Add.

LEXIS 6533. 2023 WL 5486232. at *3 (same). Ortiz’s

first issue is overruled,

III. Double Jeopardy

By his second and final issue, Ortiz argues that his three

convictions for aggravated sexual assault and his two

convictions for indecency with a child by sexual contact

violate his double-jeopardy rights because he was also

convicted of committing continuous [*11] sexual abuse

against the same complainant, and the complained-of

A-4

2024 Tex. App. LEXIS 3216, *13

Page 6 of 6

•j-

s

IV. Conclusion

We affirm Ortiz's convictions for continuous sexual

abuse of a young child and indecency with a child by

exposure. We vacate his three convictions for

aggravated sexual assault of a child and his two

convictions for indecency with a child by sexual contact.

GINA M. BENAVIDES

Justice

Do not publish.

Tex. R. Add. P. 47.2(b).

Delivered and filed on the

9th day of May, 2024.

End of Document

A-s

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°^^lS]^1rfo^IRT0FCRIMINAL ^BALS OF TEXAS ^LECOPY

PA BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711

\£,

8/21/2024

g #>

ORTIZ, MIGUEL ANGEL TrP ' v ^ ' I3°A Case No. 13-23-00082-CR

*

PD-6551-24

On thisday, tfieAppeBant’s

irn til

f review has been refused,

Deana Williamson, Oerk

ROLANDO GARZA

ATTORNEYAT LAW

310 WEST UNIVERSITY

EDINBURG, TX 78539

* DELIVERED VIA E-MAIL *

APPFMDTY-R

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