the 66th District Court Hill County, Texas Trial Court No.
Chief Justice Gray, Justice Davis, and Justice Neill
GRAY CHIEF JUSTICE.
Villareal was convicted of one count of continuous sexual
abuse of a young child, two counts of indecency with a child
by contact, and one count of sexual assault of a child and
sentenced to 30 years, 5 years, 2 years, and 5 years,
respectively, in prison. See Tex. Penal Code Ann.
§§ 21.02, 21.11(a)(1), 22.011(2)(A). Because
Villareal's complaints regarding the admission of
evidence from his cell phone and the admission of printouts
of screenshots of texts into evidence were not preserved and
because the continuous sexual abuse of a young child statute
is not unconstitutionally vague, the trial court's
judgment is affirmed.
of Section 21.02
of the importance of Villareal's third issue, we review
this issue first. In this issue, Villareal contends section
21.02 of the Texas Penal Code is unconstitutionally vague as
applied to him because the statute's language permits the
State to allege in an indictment insufficient specific facts
as to the occurrence of a series of abuse, and therefore
deprives the defendant of the ability to prepare an adequate
defense. In other words, the statute is vague because it
allows a conviction on an insufficient
It is a
basic principle of due process that an enactment is void for
vagueness if its prohibitions are not clearly defined.
Wagner v. State, 539 S.W.3d 298, 313 (Tex. Crim.
App. 2018). A statute satisfies vagueness requirements if the
statutory language conveys a sufficiently definite warning as
to the proscribed conduct when measured by common
understanding and practices. Id. at 314.
indictment is generally sufficient as long as it tracks the
language of a penal statute that itself satisfies the
constitutional requirement of notice. Lawrence v.
State, 240 S.W.3d 912, 916 (Tex. Crim. App. 2007). To
determine whether the defendant had notice adequate to
prepare his defense, we must first determine whether the
charging instrument failed to provide all the requisites of
"notice." Olurebi v. State, 870 S.W.2d 58,
61 (Tex. Crim. App. 1994) (citing Adams v. State,
707 S.W.2d 900, 903 (Tex. Crim. App. 1986). If the indictment
gave sufficient notice, our inquiry ends. Id.
contends the indictment gave insufficient notice of the
manner and means by which he had allegedly committed the
offense. The indictment in this case tracks the applicable
statutory language by alleging each element of the offense of
continuous sexual abuse of a child as set forth in the Penal
Code. See Tex. Penal Code Ann. § 21.02(b). The
indictment further alleges the different means by which
Villareal was alleged to have committed the offense.
Specifically, the indictment alleged that Villareal:
did then and there with the intent to arouse or gratify the
sexual desire of said defendant engage in sexual contact with
[victim] by touching the genitals of [victim], and/or did
then and there intentionally or knowingly cause the
penetration of the sexual organ of [victim] with the
defendant's sexual organ and/or the defendant's
finger, and/or did then and there with the intent to arouse
or gratify the sexual desire of said defendant cause [victim]
to touch the genitals of the defendant.
Each act listed constitutes an "act of sexual
abuse" under the statute. See Tex. Penal Code
Ann. § 21.02(c)(2). Thus, the manner and means alleged
by the indictment is sufficient. See Pollock v.
State, 405 S.W.3d 396, 403-404 (Tex. App.-Fort Worth
2013, no pet) (similar manner and means alleged in indictment
also contends the indictment gave insufficient notice of the
specific dates of the instances of abuse over the alleged
period that was 30 or more days. Section 21.02 of the Texas
Penal Code creates a single element of a series of acts of
sexual abuse which requires two or more factually separate
acts of sexual abuse. See Jacobsen v. State, 325
S.W.3d 733, 737 (Tex. App.-Austin 2010, no pet.); Render
v. State, 316 S.W.3d 846, 858 (Tex. App.-Dallas 2010,
pet. ref'd.). The statute does not make each act of
sexual abuse a separate element of the offense.
Render, 316 S.W.3d at 858. Rather, each act of
sexual abuse is merely an evidentiary fact, i.e., a
manner and means, of the series of acts of sexual abuse which
constitute the single element. Jacobsen, 325 S.W.3d
at 737. An indictment that tracks the language of the statute
need not allege facts that are merely evidentiary in nature.
See Livingston v. State, 739 S.W.2d 311, 321 (Tex.
Crim. App. 1987). Thus, because the indictment tracts the
language of section 21.02 and each act of sexual abuse
alleged in the indictment is an evidentiary fact, the
specific dates of the acts are also evidentiary in nature,
and the State was not required to allege specific dates in
the indictment. See Sledge v. State, 953 S.W.2d 253,
256 (Tex. Crim. App. 1997); Pollock v. State, 405
S.W.3d 396, 404 (Tex. App.-Fort Worth 2013, no pet). See
also Davis v. State, No. 10-12-00025-CR, 2012 Tex.App.
LEXIS 10578, *5-6 (Tex. App.-Waco Dec. 20, 2012, pet.
ref'd) (not designated for publication).
because the indictment properly alleged the manner and means
by which Villareal had committed the offense and the specific
dates of the occurrences of abuse were not required to be
alleged, the indictment is sufficient notice of the offense
to prepare a defense. Villareal argued that the statute was
vague because the indictment was insufficient. For the
reasons stated, the statute is not unconstitutionally vague
as applied to Villareal.
also asserts on appeal that the statute is unconstitutional
as applied because, when an offense under section 21.02 is
alleged with offenses such as indecency with a child and
sexual assault, as it was in this case, which are the
definitions of sexual abuse under ...