Gonzales, Edgar Javier
PD-1352-15
Tex.Oct 16, 2015Background
- Edgar Javier Gonzales was convicted by a jury of continuous sexual abuse of a child under 14 (Tex. Penal Code § 21.02(b)); sentence: life imprisonment and $10,000 fine.
- Allegations spanned Nov. 1, 2007–Nov. 16, 2009; victim testified multiple acts occurring about once a week from 2007–2009; Gonzales denied ever being alone with the child.
- The indictment charged a continuous course of conduct (two or more acts during a period of 30+ days); § 21.02(d) provides jurors need not unanimously agree on which specific acts or exact dates, only that two or more acts occurred during a 30+ day period.
- Gonzales raised: (1) a facial constitutional/statutory challenge to § 21.02(d) arguing it permits non‑unanimous verdicts on the underlying acts; and (2) trial court error for refusing a requested lesser‑included instruction for aggravated sexual assault of a child.
- The Fourth Court of Appeals affirmed: (a) rejected the unanimity and statutory challenge, treating individual acts as manner/means (not elements); (b) held lesser‑included instruction unnecessary because the record lacked evidence that the jury could rationally convict only of the single‑act offense; (c) found charge error as to limiting pre‑statute conduct but held any harm non‑egregious.
Issues
| Issue | Plaintiff's Argument (Gonzales) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether § 21.02(d) violates unanimity by allowing conviction without jurors agreeing on which specific acts occurred | § 21.02(d) permits jurors to each pick different acts (up to 24 acts) and still convict, violating statutory and constitutional unanimous‑verdict guarantees | The statute is constitutional; jurors must unanimously find the pattern (two or more acts over 30+ days) and individual acts are manner/means (evidentiary), not elements | Court rejected Gonzales’s challenge and upheld § 21.02(d) as constitutional and statutorily valid |
| Whether trial court erred in refusing lesser‑included instruction for aggravated sexual assault (single act) | A lesser instruction should have been given because the jury could have disbelieved testimony of multiple acts and convicted only of a single aggravated assault | Aggravated sexual assault is a lesser‑included offense but the evidence did not provide some evidence germane to only the lesser offense; credibility conflicts cannot be used to force the instruction | Court held no error: evidence (victim’s multiple statements and testimony) did not present a rational ground to convict only of the lesser offense |
| Whether jury charge improperly allowed consideration of acts before § 21.02’s effective date (Sept. 1, 2007) | Charge failed to limit nonbinding indictment‑date instruction to acts on/after Sept. 1, 2007, risking ex post facto conviction | State agreed charge should have limited the general date instruction but argued any error was harmless | Court found charge error but no egregious harm given application paragraph, evidence, and counsel arguments; no reversal |
Key Cases Cited
- Dixon v. State, 201 S.W.3d 731 (Tex. Crim. App. 2006) (discusses unanimity concerns in multi‑incident sexual‑abuse prosecutions)
- Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) (framework for juror unanimity and related charge principles)
- Fulmer v. State, 401 S.W.3d 305 (Tex. App.—San Antonio 2013) (holds individual acts are manner/means; § 21.02(d) constitutional)
- Martin v. State, 335 S.W.3d 867 (Tex. App.—Austin 2011) (holds general nonbinding date instruction must be limited to avoid ex post facto liability)
- Goad v. State, 354 S.W.3d 443 (Tex. Crim. App. 2011) (two‑step test for entitlement to lesser‑included instruction)
- State v. Rabago, 81 P.3d 1151 (Haw. 2003) (contrasting approach: treated underlying acts as separate offenses and struck similar continuous‑abuse statute)