Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Villareal v. State

Court of Appeals of Texas, Tenth District

October 16, 2019

TOMMY VILLAREAL, Appellant
v.
THE STATE OF TEXAS, Appellee

          From the 66th District Court Hill County, Texas Trial Court No. 38, 366

          Before Chief Justice Gray, Justice Davis, and Justice Neill

          OPINION

          TOM GRAY CHIEF JUSTICE.

         Tommy 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.

         Constitutionality of Section 21.02

         Because 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 indictment.[1]

         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.

         An 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.

         Villareal 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 sufficient).

         Villareal 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).

         Accordingly, 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.

         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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.