Opinion
NO. 01-18-00529-CR
10-03-2019
ANTONIO RENOVATO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court Harris County, Texas
Trial Court Case No. 1500358
MEMORANDUM OPINION
A jury convicted Antonio Renovato of continuous sexual abuse of a child under the age of 14, specifically, his daughter. He was sentenced to forty years' confinement. In a single issue, Renovato contends the trial court erred by denying his request to charge the jury on the lesser-included offense of indecency with a child.
See TEX. PENAL CODE § 21.02(b-c) (continuous sexual abuse of child); see also id. § 22.021 (aggravated sexual assault as underlying offense in conviction for continuous sexual abuse of child); § 21.11(a) (indecency with child as underlying offense in conviction for continuous sexual abuse of child).
We affirm.
Uncharged Lesser-Included Offenses
It is the responsibility of the trial court to deliver to the jury a written charge setting forth the "law applicable to the case." TEX. CODE CRIM. PROC. art. 36.14; Burnett v. State, 541 S.W.3d 77, 84 (Tex. Crim. App. 2017). Because lesser-included instructions have a defensive strategic element to them, a trial court does not have an obligation to include lesser-included offenses in its charge without a defense request. Tolbert v. State, 306 S.W.3d 776, 780 (Tex. Crim. App. 2010). Whether a lesser-included offense should be included at the defendant's request depends, in part, on the evidence presented to the jury. See Flores v. State, 245 S.W.3d 432, 439 (Tex. Crim. App. 2008). Thus, we begin by reviewing the evidence presented to the jury underlying its conviction of Renovato for continuous sexual abuse of his daughter.
A. The evidence and judgment of conviction
The evidence the jury received included the testimony of Renovato's daughter, who was 15 years old at the time of trial. She testified that Renovato first touched her inapporpriately when she was six or seven years old. The first time was after she asked to go play at a friend's house. Renovato told her she had to play "tickle" with him first. He then removed her clothes and licked her vagina. The second incident happened three weeks later. Then, Renovato spread a blanket over her, removed her clothes from the lower half of her body, and put his penis "on her butt" and pressed his penis against her vagina. It hurt. She moved out of his reach, and he stopped.
The third incident she testified about was two weeks later. Renovato spread a blanket across her and put his tongue on her vagina. She recalled telling him repeatedly to stop and then pushing him off her. She said she spent the rest of that day in her bedroom alone.
The jury also heard testimony from outcry witnesses about how the child described the incidents of abuse to them. The outcry witnesses' testimony was consistent with the child's trial testimony.
Renovato did not testify, but the trial evidence included a transcript of a 2016 police interview, in which Renovato discussed touching his daughter. At the beginning of the interview, Renovato denied any inappropriate contact with his daughter. After additional questioning, he admitted that he had "touched her." There were times, he agreed, he had been "kissing her there . . . . In the mouth of the vagina." The officer asked him how many times he had kissed his daughter's vagina, and he said he had done so "two times."
After the close of evidence, the parties addressed what would be included in the court's charge. Renovato requested the trial court to instruct the jury on the lesser-included offense of indecency with a child. The trial court denied his request and presented the jury with three options: (1) acquit, (2) convict of aggravated sexual assault of a child, or (3) convict of continuous sexual abuse of a child. The jury convicted Renovato of continuous sexual abuse of a child.
On appeal, Renovato argues the trial court erred by denying his request for an instruction on the lesser-included offense of indecency with a child.
B. Standard of review
We use a two-step analysis to determine whether a criminal defendant was entitled to an instruction on a lesser-included offense. Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012); Sweed v. State, 351 S.W.3d 63, 67 (Tex. Crim. App. 2011). We first determine whether the uncharged offense is a lesser-included offense of the charged offense. Sweed, 351 S.W.3d at 68; Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007). This inquiry is a question of law. Hall, 225 S.W.3d at 535.
If the first step is met, the second step then requires that we determine if there is some evidence in the record that would have permitted the jury to rationally find that if the criminal defendant was guilty, he was guilty only of the lesser-included offense. Id. at 536; Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993).
Anything more than a scintilla of evidence may be sufficient to warrant a lesser charge, but the evidence must establish the lesser-included offense as a valid, rational alternative to the charged offense. Hall, 225 S.W.3d at 536; Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999). The threshold is low, but it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense; instead, there must be some evidence directly germane to the lesser-included offense for the factfinder to consider before a lesser-included offense instruction is warranted. Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994).
If we determine the trial court erred in refusing to give a requested instruction on a lesser-included offense, we engage in a harm analysis pursuant to Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (en banc) (op. on reh'g). See Grey v. State, 298 S.W.3d 644, 648 (Tex. Crim. App. 2009) (citing Saunders v. State, 913 S.W.2d 564, 570 (Tex. Crim. App. 1995)). If the defendant preserved error by requesting the challenged instruction, we will reverse the conviction if the denial of the instruction resulted in some harm to the defendant. Cornet v. State, 417 S.W.3d 446, 449 (Tex. Crim. App. 2013). "Some harm" means actual harm and not merely a theoretical complaint. Id. at 449-50. To evaluate harm under Almanza, "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 Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).
When a jury declines to convict on a submitted, intervening lesser-included offense, choosing instead to convict on the maximum offense charged, that decision, in certain circumstances, can "weigh heavily" against a finding of harm. Braughton v. State, 569 S.W.3d 592, 614 (Tex. Crim. App. 2018); Masterson v. State, 155 S.W.3d 167, 171 (Tex. Crim. App. 2005); Saunders, 913 S.W.2d at 572. At times, a court may conclude an intervening offense instruction renders error harmless because the jury's rejection of the intervening offense "indicates that the jury legitimately believed that the defendant was guilty of the greater, charged offense." Masterson, 155 S.W.3d at 171-72. Other times, though, the jury's rejection of an intervening offense will not foreclose a finding of harm, as, for example, would be the case if the intervening offense is the least plausible theory under the evidence. Id. at 171.
C. The offense Renovato wanted included in the charge but was not
Renovato contends the trial court erred by not submitting to the jury the lesser-included offense of indecency with a child. The elements of the offense of indecency with a child can be satisfied with evidence that a person, among other acts, "engages in sexual contact with a child" younger than 17 years of age by "touching . . . any part of the genitals of a child" with the intent to arouse or gratify the sexual desire of any person. TEX. PENAL CODE § 21.11(a)(1), (c). An offense of indecency with a child by sexual contact is a second-degree felony punishable by imprisonment for no less than two years and no more than 20 years. Id. §§ 21.11(d), 12.33(a).
"Touching ordinarily connotes contact." Prestiano v. State, No. 01-17-00763-CR, 2019 WL 3933756, at *4 (Tex. App.—Houston [1st Dist.] Aug. 20, 2019, no pet. h.); see IslasMartinez v. State, 452 S.W.3d 874, 877-79 (Tex. App.—Dallas 2014, pet. ref'd) (undefined term "contact" synonymous with "touching" in context of aggravated sexual assault); Caldwell v. State, No. 03-96-00603-CR, 1998 WL 10280, at *1 (Tex. App.—Austin Jan. 15, 1998, no pet.) (not designated for publication) ("'Contact' may be defined as 'touching.'").
The offense of indecency with a child is a lesser-included offense of aggravated sexual assault and of continuous sexual abuse of a child—the two offenses included in the court's charge. See Soliz v. State, 353 S.W.3d 850, 854 (Tex. Crim. App. 2011) (lesser-included of continuous sexual abuse of child); Evans v. State, 299 S.W.3d 138, 143 (Tex. Crim. App. 2009) (lesser-included of aggravated sexual assault).
Renovato argues the jury received some evidence that he touched his daughter's genitals, thereby entitling him to a jury instruction on indecency with a child as an alternative, lesser ground for conviction.
D. The offenses included in the charge
The jury was instructed on two offenses: aggravated sexual assault and continuous sexual abuse of a child. The elements of aggravated sexual assault can be met with evidence that a person intentionally or knowingly causes the sexual organ of a child younger than 14 years of age to contact the mouth of the actor. TEX. PENAL CODE § 22.021(a)(1)(B)(iii), (2)(B). An offense of aggravated sexual assault is a first-degree felony. Id. § 22.021(e).
The elements of the offense of continuous sexual abuse of a child can be met with evidence that a person "commits two or more acts of sexual abuse" of a child over the span of 30 or more days. Id. § 21.02(b)(1). The statute lists several acts that qualify as an "act of sexual abuse," including indecency with a child (based on the touching of a child's genitals); sexual assault; aggravated sexual assault; and sexual performance by a child. Id. § 21.02(c)(2-4), (6). An offense of continuous sexual abuse of a child is a first-degree felony punishable by imprisonment for no less than 25 years. Id. § 21.02(h).
Each of these predicate offenses is a lesser-included offense of continuous sexual abuse of a child. See Price v. State, 434 S.W.3d 601, 605-06 (Tex. Crim. App. 2014); Soliz v. State, 353 S.W.3d 850, 854 (Tex. Crim. App. 2011).
The court instructed the jury that, to convict Renovato of continuous sexual abuse of a child, it had to determine beyond a reasonable doubt that Renovato committed "at least two acts of sexual abuse," and, in doing so, specifically stated that both acts of sexual abuse had to be "the offense of aggravated sexual assault."
E. Trial court did not err in omitting instruction on indecency with a child
To warrant an instruction on a lesser-included offense, there must be some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser-included offense. Sweed, 351 S.W.3d at 68; Guzman v. State, 188 S.W.3d 185, 188-89 (Tex. Crim. App. 2006). The evidence must establish the lesser-included offense as "a valid rational alternative to the charged offense." Segundo v. State, 270 S.W.3d 79, 90-91 (Tex. Crim. App. 2008).
Renovato's daughter testified that, when she was six or seven years old, Renovato touched her vagina with his mouth twice and with his penis once. Renovato admitted in his police interview that he "kissed" his daughter's vagina "two times" when she was younger than 14 years old. Kissing a child's genitals satisfies the elements of indecency with a child (touching a child's genitals) and aggravated sexual assault of a child (causing a child's sexual organ to contact one's mouth). See TEX. PENAL CODE §§ 21.11, 22.021.
The jury was not presented with any evidence that would have allowed it to reasonably conclude Renovato was guilty of only indecency with a child without also meeting the threshold for aggravated sexual assault of a child. Contact between Renovato's mouth and his daughter's genitals satisfies both statutes. TEX. PENAL CODE §§ 21.11, 22.021; see Ochoa v. State, 955 S.W.2d 389, 393 (Tex. App.—San Antonio 1997, pet. ref'd) (discussing situation in which same evidence met evidentiary requirements to convict on indecency with a child or on aggravated sexual assault of a child). Without any evidence in favor of a determination that Renovato was guilty only of indecency with a child, the trial court did not err in omitting the offense from the court's charge. See Hendrix v. State, 150 S.W.3d 839, 851 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd) (holding that trial court did not err in failing to submit lesser-included offense of indecency with a child because there was no conflict raised by evidence that would enable a rational factfinder to conclude that appellant was guilty only of the lesser-included offense and not also of aggravated sexual assault); Carter v. State, No. 08-11-00025-CR, 2012 WL 6681939, at *2-3 (Tex. App.—El Paso Dec. 21, 2012, pet. ref'd) (not designated for publication) (holding that, because defendant's admission satisfied evidentiary requirements for both aggravated sexual assault and indecency with a child by contact, trial court did not err in denying defendant's request for lesser-included offense instruction on indecency with a child by contact).
We overrule Renovato's sole issue.
Regardless of the lack of error, Renovato could not show the harm necessary to obtain a reversal of his conviction based on the failure to provide the jury an opportunity to convict him of an ever lesser criminal offense. See Braughton, 569 S.W.3d at 617. There is no realistic possibility that the jury would have opted to convict Renovato of indecency with a child (a second-degree felony) had it received an instruction on that offense because it refused to convict him of aggravated sexual assault of a child (a first-degree felony) when the same evidence satisfied both crimes. See id. The jury's rejection of a possible intervening offense would render any error harmless because the rejection indicated the jury legitimately believed Renovato was guilty of the greater, charged offense of continuous sexual abuse of a child (a first-degree felony with a minimum sentence of 25 years). See Masterson, 155 S.W.3d at 172; Saunders, 913 S.W.2d at 572-74.
Conclusion
We affirm.
Sarah Beth Landau
Justice Panel consists of Justices Lloyd, Goodman, and Landau. Do not publish. TEX. R. APP. P. 47.2(b).