Martinez, Alcenios A/K/A Aucensio Lopez, PD-0409-15

Background

Appellant Alcenios Martinez was convicted by a jury of continuous sexual abuse of a young child and sentenced to 50 years’ imprisonment.
Indictment alleged two acts of aggravated sexual assault (penetration by the actor’s sexual organ) occurring more than 30 days apart against a child under 14.
The State’s proof included testimony describing two penile–vaginal penetration incidents that matched the indictment, plus additional evidence of an extraneous breast‑touching incident not charged as an act of sexual abuse for §21.02 purposes.
The jury charge tracked Penal Code §21.02(d) language: jurors “need not all agree on which specific acts of sexual abuse were committed” but must agree the defendant committed two or more acts.
Appellant argued the unanimity instruction was improper because only two acts were alleged/proved (so jurors must unanimously agree on each), and also challenged the culpable‑mens rea instructions, arguing aggravated sexual assault includes both conduct‑ and result‑oriented elements.
The Eleventh Court of Appeals affirmed, holding (1) sufficiency of evidence supported conviction, (2) any charge errors did not cause egregious harm, (3) §21.02(d) permissibly avoids unanimity on specific acts, and (4) Gonzales controls that aggravated sexual assault is a nature‑of‑conduct statute for mens rea instruction purposes.

Issues

Issue	Plaintiff's Argument (Martinez)	Defendant's Argument (State / Court below)	Held
Whether jury must be unanimous as to which specific acts when indictment alleges only two acts but State introduced an extraneous sexual‑contact incident	§21.02(d) should not apply to avoid unanimity where only two charged/proved acts exist; jurors must unanimously find those two specific acts (otherwise non‑unanimous verdict possible)	§21.02(d) permits non‑unanimity as to which acts constituted the two or more acts so long as jurors agree defendant committed two or more acts; extraneous breast touching was not an act of "sexual abuse" under §21.02(c) and charge referenced only the two alleged aggravated assaults	Court of Appeals: affirmed. Held §21.02(d) language used in the charge was not reversible error and the charge, viewed with the record and closing argument, did not cause egregious harm; the extraneous breast‑touching was not an element and jury was properly instructed to find two acts matching the indictment.
Whether aggravated sexual assault requires intent/knowledge as to both the result (penetration) and the nature of the conduct (by actor’s sexual organ) — i.e., is it both result‑ and conduct‑oriented for mens rea instructions?	Aggravated sexual assault includes both a result‑of‑conduct element (causing penetration) and a nature‑of‑conduct element (by actor’s sexual organ), so mens rea definitions must be tailored to both elements	Relying on Gonzales, aggravated sexual assault is a nature‑of‑conduct statute; any perceived charge wording error did not egregiously harm Martinez because intent was not a contested issue	Court of Appeals: affirmed. Held that, in light of Gonzales, the court disavowed its prior Baker analysis and concluded any mens rea instruction error did not cause egregious harm, so no reversible error.

Key Cases Cited

Pizzo v. State, 235 S.W.3d 711 (Tex. Crim. App. 2007) (jury unanimity principles under Texas law)
Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) (standards for jury charge error review/unanimity)
Gonzales v. State, 304 S.W.3d 838 (Tex. Crim. App. 2010) (characterizing aggravated sexual assault as a nature‑of‑conduct statute)
Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (sufficiency of the evidence standard)
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (state of evidence review and hypothetically correct jury charge framework)
Cook v. State, 884 S.W.2d 485 (Tex. Crim. App. 1994) (error to fail to limit culpable‑mens‑rea definitions to relevant conduct elements)
McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996) (jury communication and Article 36.27 principles)