NUMBER 13-19-00318-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
PEDRO ENRIQUE BARZOLA GARCIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 389th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Tijerina
Memorandum Opinion by Justice Tijerina
Appellant Pedro Enrique Barzola Garcia was convicted of: one count of continuous
sexual abuse of a young child, a first-degree felony (count one); two counts of aggravated
sexual assault of a child, first-degree felonies (counts two and three); one count of
indecency with a child by contact, a second-degree felony (count four); and one count of
indecency with a child by exposure, a third-degree felony (count five). See TEX. PENAL
CODE ANN. §§ 21.02, 21.11(D), 22.021(A)(2)(B). Garcia received concurrent sentences of
thirty-two years’ confinement for the continuous sexual abuse of a child offense, five
years’ confinement for each of the aggravated sexual assault of a child offenses, seven
years’ confinement for the indecency with a child by contact offense. The trial court
followed the jury’s recommendation and suspended Garcia’s five-year sentence for
indecency with a child by exposure and sentenced him to ten years’ community
supervision.
By three issues, Garcia contends that a double jeopardy violation occurred, the
trial court allowed improper jury argument, and there was charge error. Because in this
case, as the State concedes, there is a double jeopardy violation as further explained
below, we reverse Garcia’s convictions for aggravated sexual assault of a child as
charged in counts two and three, we render a judgment of acquittal on those two counts,
and we affirm the judgment in all other respects for counts one, four, and five.
I. BACKGROUND
A grand jury indicted Garcia for the following: (1) committing two or more acts of
sexual abuse against A.R., 1 a child younger than fourteen years of age, “namely,
aggravated sexual assault of a child and indecency with a Child by contact” during a
period that was thirty or more days in duration, “to-wit: from on or about 1st day of
December, 2016 through on or about 15th day of March, 2018,” (count one); (2)
intentionally or knowingly causing his finger to penetrate A.R.’s sexual organ when she
1 To protect the minor complainant’s identity in this case, we will use aliases as necessary. See
TEX. R. APP. P. 9.8.
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was under fourteen years’ of age on or about March 15, 2018 (count two); (3) intentionally
or knowingly causing his mouth to contact A.R.’s sexual organ when she was younger
than fourteen on or about March 15, 2017 (count three); (4) engaging in sexual contact
with A.R. with the intent to arouse or gratify his sexual desire by touching her breast when
she was younger than seventeen years’ of age on or about February 1, 2018 (count four);
and (5) exposing his genitals with the intent to arouse or gratify his sexual desire knowing
that A.R., a child younger than seventeen, was present (count five). Garcia pleaded “not
guilty” to all counts. A jury trial was held.
At trial, A.R., a thirteen-year old child, testified that Garcia is her stepfather, and
he has been a part of the family since she was in second grade. A.R. stated that she had
been sexually abused by Garcia almost every night starting when she was ten years old.
A.R. recalled that Garcia first abused her on a hot August night when she slept with Garcia
and her mother. According to A.R., Garcia hugged her and then touched her vaginal area
with his hands over her underwear and under her pajama pants. A.R. explained that she
was only ten years old when the first incident happened, and she never told her mother
because she was scared and did not understand what Garcia had done to her. A.R.
recalled that the abuse continued every night after this first incident. A.R. testified that
she specifically remembered that on another occasion, Garcia unbuckled her bra and put
his hands in her shirt and rubbed her breasts. A.R. stated that Garcia would take off her
pants, put his head in her vagina, stick his tongue in her vagina, and it would feel “ticklish.”
A.R. said this occurred frequently. A.R. felt threatened by Garcia because he would tell
her that she was his and “only his.” A.R. testified that Garcia made her believe that without
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him, her family was “nothing” because he worked and took care of her and her siblings.
A.R. said she was very scared to tell anyone what Garcia was doing to her and what
would happen to the family if she told someone. The State asked A.R. if she ever saw
Garcia’s penis, and she replied,
Now it’s called boner. He would pull his shorts down. And the first time was
when my mom was taking a shower and he was—they would both sleep
downstairs. He was just there, and I was there too, laying next to him, and
he just showed me. He just showed me. And I was surprised—I wasn’t
surprised. I was like—I don’t know. And that was the first time.
A.R. testified that on multiple occasions, Garcia would place her hand on his penis,
which was hard. A.R. stated that Garcia showed her “porn” movies on multiple occasions,
and Garcia would masturbate in front of her. According to A.R., the abuse ended when
she was twelve years old after she told a friend what Garcia was doing to her. The friend
then reported the abuse to A.R.’s mother. A.R. stated that her mother asked her about
the abuse, and when she verified it had occurred, her mother took her to the police station.
The jury found Garcia guilty of all counts. This appeal followed.
II. DOUBLE JEOPARDY
In his first issue, Garcia contends that counts one, two, and three violate the
constitutional prohibition against double jeopardy. Specifically, Garcia argues that counts
two and three (aggravated sexual assault of a child under fourteen) are lesser included
offenses of count one (continuous sexual assault of a child) because counts two and three
allege predicate offenses used to convict him of continuous sexual abuse of a child. Thus,
Garcia requests that we vacate his convictions of aggravated sexual assault as charged
in counts two and three. The State concedes that there was a double jeopardy violation
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because counts two and three served as predicate offenses to convict Garcia of
continuous sexual abuse. The State agrees that we should vacate Garcia’s convictions
of aggravated sexual assault of a child under fourteen as charged in counts two and three.
A. Applicable Law
The Double Jeopardy Clause of the United States Constitution protects against
multiple punishments for the same offense. See U.S. CONST. amend. V; Brown v. Ohio,
432 U.S. 161, 164 (1977); Littrell v. State, 271 S.W.3d 273, 275 (Tex. Crim. App. 2008).
In order to prevail on a double jeopardy claim, the record must demonstrate that the
offenses at issue necessarily arose from “one act which could be subject to two different
interpretations.” Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998). “Even
when two acts are committed in close temporal proximity, the acts still may be separate
and distinct for double jeopardy purposes.” Gonzalez Soto v. State, 267 S.W.3d 327, 343
(Tex. App.—Corpus Christi–Edinburg 2008, no pet.).
A person commits the offense of continuous sexual abuse of a child if “during a
period that is 30 or more days in duration, the person commits two or more acts of sexual
abuse” and “the actor is 17 years of age or older and the victim is a child younger than 14
years of age.” TEX. PENAL CODE ANN. § 21.02(b)(2). Under § 22.021 of the Texas Penal
Code, a person commits the offense of aggravated sexual assault if he intentionally or
knowingly causes the penetration of the sexual organ of a child by any means, or causes
the sexual organ of a child to contact or penetrate the sexual organ of another person,
including himself. See id. § 22.021(a)(1)(B)(i), (a)(1)(B)(iii). Section 21.02 lists predicate
offenses which constitute “acts of sexual abuse” under the statute, including aggravated
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sexual assault of a child. Id. § 21.02(c)(4). The statute further states,
A defendant may not be convicted in the same criminal action of an offense
listed under Subsection (c) the victim of which is the same victim as a victim
of the offense alleged under Subsection (b) unless the offense listed in
Subsection (c):
(1) is charged in the alternative;
(2) occurred outside the period in which the offense alleged under
Subsection (b) was committed; or
(3) is considered by the trier of fact to be a lesser included offense of the
offense alleged under Subsection (b).
TEX. PENAL CODE ANN. § 21.02(e).
The Texas Court of Criminal Appeals has explained that “the Legislature intended
to permit one conviction for continuous sexual abuse based on the repeated acts of sexual
abuse that occur over an extended period of time against a single complainant, even if
the jury lacks unanimity as to each of the particular sexual acts or their time of occurrence,
so long as the jury members agree that at least two acts occurred during a period that is
thirty or more days in duration.” Price v. State, 434 S.W.3d 601, 605–06 (Tex. Crim. App.
2014). “The ‘acts of sexual abuse’ are specifically enumerated and are lesser-included
offenses of the offense of continuous sexual abuse.” Id. Thus, an offense listed under
Subsection (c) of the continuous sexual assault statute, such as aggravated sexual
assault of a child, will always be a lesser offense of continuous sexual abuse. Id. (citing
Soliz v. State, 353 S.W.3d 850, 854 (Tex. Crim. App. 2011)). The Texas Court of Criminal
Appeals stated that “the Legislature clearly intended to disallow dual convictions for the
offense of continuous sexual abuse and for offenses enumerated as ‘acts of sexual
abuse’ when based on conduct against the same child during the same period of time.”
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Id. (citing TEX. PENAL CODE ANN. § 21.02(e)). Thus, “[a] defendant charged with
continuous sexual abuse who is tried in the same criminal action for an enumerated
offense based on conduct committed against the same victim may not be convicted for
both offenses unless the latter offense occurred outside the period of time in which the
continuous-sexual-abuse offense was committed.” Id.
Here, as conceded to by the State, Garcia was convicted of two counts of
aggravated sexual of a child occurring during the same period of time in the which the
continuous sexual abuse of the same child was committed, and those aggravated sexual
assault of a child charges served as the predicate offenses for the continuous sexual
abuse of a child offense. Therefore, we agree with Garcia and the State that the
aggravated assault of a child convictions as charged in counts two and three violate the
double jeopardy clause in this case. In general, “[w]hen a defendant is subjected to
multiple punishments for the same conduct, the remedy is to affirm the conviction for the
most serious offense and vacate the other convictions.” Bigon v. State, 252 S.W.3d 360,
372 (Tex. Crim. App. 2008). “[T]he most serious offense was the offense in which the
greatest sentence was assessed.” Id. at 373 (citing Ex parte Cavazos, 203 S.W.3d 333,
338 (Tex. Crim. App. 2006)). Garcia received a thirty-two-year sentence for the
continuous sexual abuse of a child conviction and a five-year sentence for each
aggravated sexual assault of a child convictions. Accordingly, we sustain Garcia’s first
issue, and therefore, we must vacate the aggravated sexual assault of a child convictions
as charged in counts two and three.
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III. THE STATE’S CLOSING ARGUMENT
By his second issue, Garcia contends that during the prosecutor’s closing
argument, the trial court improperly overruled his objection to the following statement:
I want to spend some time talking about the different defensive theories or
defense theories that have been thrown out there, okay, and, you know,
sometimes what defense attorneys or a defendant—I’m sorry—they want
to do is just let me just throw it up there. Let me throw out as many things
as I can get out there and hopefully—
Specifically, Garcia argues that the trial court should have sustained his objection that
this statement struck him over the shoulders of his defense counsel.
A. Standard of Review & Applicable Law
We review a trial court’s ruling on an objection to improper jury argument for an
abuse of discretion. Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004);
Whitney v. State, 396 S.W.3d 696, 705 (Tex. App.—Fort Worth 2013, pet. ref’d). Proper
argument generally falls within one of four areas: (1) summation of the evidence, (2)
reasonable deductions from the evidence, (3) answers to opposing counsel’s argument,
and (4) plea for law enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim.
App. 2011). Argument that strikes at a defendant over the shoulders of counsel is
improper. Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim. App. 2010); Mosley v. State,
983 S.W.2d 249, 259 (Tex. Crim. App. 1998). We consider the objected-to argument in
light of the entire record to decide whether a party’s argument falls into one of these
categories. Magana v. State, 177 S.W.3d 670, 674 (Tex. App.—Houston [1st Dist.] 2005,
no pet.).
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B. Discussion
In Mosley v. State, the Texas Court of Criminal Appeals analyzed whether it was
erroneous for the trial court to overrule an objection to the prosecutor’s argument that
indicated that “the defense attorneys would attempt to use argument to divert the jury’s
attention or obscure the issues.” 983 S.W.2d at 258. Specifically, in Mosley, the defendant
objected to the following comment by the prosecutor:
There is only one route to the truth. It is by traveling on the main road. That
will take you to your proper destination. But you must stay on the main road.
The defense has attempted to get you off the main road, to divert you. They
don’t want you to stay on the main road because they know where that will
take you.
Id. The Mosley court stated, “We have indicated in the past that such mild comments may
not be erroneous, so long as they can be interpreted as an attack on arguments made by
the defense counsel.” 2 Id. at 258–59. The Mosley court noted that it had previously
determined that a trial court did not improperly overrule an objection to a prosecutor’s
similar comment: “Don’t let him smoke-screen you, he has smoke-screened you enough.”
Id. at 259 (citing Gorman v. State, 480 S.W.2d 188, 190 (Tex. Crim. App. 1972)). In
Gorman v. State, the Texas Court of Criminal Appeals agreed with the State that the
prosecutor’s comment was not a personal attack, “but rather made in answer to [defense]
counsel’s argument which attempted to minimize the scope and extent of appellant’s prior
criminal record.” 480 S.W.2d at 190–91. The Mosley court clarified that “a prosecutor runs
a risk of improperly striking at a defendant over the shoulder of counsel when the
2The Mosley court assumed without deciding that the trial court committed error by overruling the
defendant’s objection because the court believed the comments made by the prosecutor “suggested that
counsel wanted to divert the jury from the truth.” Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App.
1998).
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argument is made in terms of defense counsel personally and when the argument
explicitly impugns defense counsel’s character.” 983 S.W.2d at 259. Thus, improper
remarks directed at defense counsel himself are improper while remarks which attack or
disparage counsel’s argument or theory of defense are proper. Id.; see also Matamoros
v. State, No. 13-13-00692-CR, 2015 WL 6759331, at *21 (Tex. App.—Corpus Christi–
Edinburg Nov. 5, 2015, pet. ref’d) (mem. op., not designated for publication) (citing Coble
v. State, 871 S.W.2d 192, 203–05 (Tex. Crim. App. 1993) (en banc); Gorman, 480 S.W.2d
at 190; Cueva v. State, 339 S.W.3d 839, 882–83 (Tex. App.—Corpus Christi–Edinburg
2011, pet. ref’d)). In Cueva v. State, this Court determined that the prosecutor’s argument
that “a standard tactic of defense attorneys, when your victim has done something
indefensible, [is to] put the victim on trial” was proper because the prosecutor merely
“attacked the defense tactic and not the defense attorney himself.” 339 S.W.3d at 882–
83.
In this case, the prosecutor stated she wanted to talk “about the different defensive
theories or defense theories that have been thrown out there” and claimed that
“sometimes what defense attorneys or a defendant . . . they want to do is just . . . throw it
up there. Let me throw out as many things as I can get out there . . . .” In other words, the
prosecutor observed that a common defensive theory is to present as many arguments
against the prosecution as possible in hopes that the jury relies on one of those
arguments. Thus, the prosecutor did not attack Garcia’s defense counsel personally or
impugn defense counsel’s character. In addition, as previously stated, the Mosley court
believed that the prosecutor’s comments “suggested that [the defense] counsel wanted
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to divert the jury from the truth.” 983 S.W.2d at 259. However, the prosecutor’s comments
here did not cast aspersion on Garcia’s defense counsel’s veracity or suggest that
Garcia’s defense counsel wanted to divert the jury from the truth. The comment merely
criticized defense counsel’s strategy of “throw[ing] out as many [defensive theories] as
[defense counsel] can get out there.” See id. Accordingly, the trial court did not abuse its
discretion in overruling Garcia’s objection. We overrule his second issue.
IV. CHARGE ERROR
By his third issue, Garcia contends that there was error in the jury charge
warranting reversal. Specifically, Garcia contends that the jury charge did not state that
the jury had to unanimously find that he committed indecency with a child by exposure as
charged in count five. Garcia argues that A.R. testified that he showed his penis to A.R.
on multiple but separate occasions.3 Thus, Garcia argues some of the jurors could have
found that he committed the offense on one occasion while other jurors could have found
he committed the offense on a different occasion. The State concedes that there is error
in the jury charge under Cosio v. State because “evidence of more than a single episode
[was presented to the jury] which would support [a] conviction under this count” and “only
a ‘boilerplate’ unanimity instruction” was provided which “did not instruct the jury that,
when evidence of multiple such episodes was admitted, their verdict must be unanimous
3 Specifically, Garcia argues as follows:
Here, the complainant said that [he] showed her his penis while they were on the bed and
her mother was in the shower; that [he] would grab her hand and put it on his penis; that
his penis was hard; that [he] would show her porn; that this would happen on the couch;
that when he watched the videos, [he] would put his hand on his penis over his shorts or
outside of his shorts in front of her.
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as to which alleged event was proved beyond a reasonable doubt.” 353 S.W.3d 766, 772
(Tex. Crim. App. 2011).
Accordingly, we will assume without deciding that the charge was erroneous, and
because Garcia did not object to the jury charge, we will conduct an egregious harm
analysis. See id. (explaining that “non-unanimity may occur when the State charges one
offense and presents evidence that the defendant committed the charged offense on
multiple but separate occasions” with “[e]ach of the multiple incidents individually
establish[ing] a different offense or unit of prosecution” and the charge does not “instruct
the jury that its verdict must be unanimous as to a single offense or unit of prosecution
among those presented”); Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006);
see also Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).
A. Standard of Review
In conducting our harm analysis, “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 Garrett v. State, 159 S.W.3d 717, 719–21 (Tex. App.—Fort Worth 2005), aff’d, 220
S.W.3d 926 (Tex. Crim. App. 2007). Egregious harm occurs if the error affects the very
basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive
theory. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (plurality opinion).
B. Discussion
As in Cosio, here the charge “permitted [a] non-unanimous verdict[] based on the
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evidence presented in the case” and “nothing in the charge[] [itself] militates against this
conclusion.” 353 S.W.3d at 777.
Next, again as in Cosio, here “neither of the parties nor the trial judge added to the
charge errors by telling the jury that it did not have to be unanimous about the specific
instance of criminal conduct in rendering its verdict[].” See id. Thus, “this factor therefore
does not weigh in favor of finding egregious harm.” See id.
Similarly, as in Cosio, A.R.’s testimony detailed each of the multiple incidents
wherein Garcia committed various acts of sexual abuse, and the various separate
instances of criminal conduct involved in each incident. A.R.’s testimony was not
impeached. See id. And, as in Cosio, Garcia’s defense was a denial of committing any of
the offenses and that there was reasonable doubt as to each of the multiple incidents as
described by A.R. See id. Thus, Garcia’s defense mimicked the defense in Cosio that
“was essentially of the same character and strength across the board.” See id. And here,
as in Cosio, “[t]he jury was not persuaded that he did not commit the offenses or that
there was any reasonable doubt.” See id.
The jury believed A.R.’s testimony and convicted Garcia of all counts. And if the
jury had believed otherwise, it would have acquitted Garcia on all counts. See id. at 777–
78. Therefore, on this record, which is similar to the record in Cosio, it is logical to suppose
as the Cosio court did that the jury unanimously agreed that Garcia committed all the
separate instances of criminal conduct during each of the incidents as described by A.R.
See id. at 778. It is thus highly likely that the jury’s verdict of guilty on count five was in
fact, unanimous. See id. Accordingly, actual harm has not been shown, and we cannot
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say that Garcia was denied a fair and impartial trial. See id. We overrule Garcia’s third
issue.
IV. CONCLUSION
We reverse Garcia’s convictions for aggravated sexual assault of a child as
charged in counts two and three, and we render a judgment of acquittal on those two
counts. We affirm the judgment in all other respects.
JAIME TIJERINA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
30th day of December, 2020.
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