Full Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-25-00347-CR No. 04-25-00348-CR Hector Javier CARRAZCO-PENA, Appellant v. The STATE of Texas, Appellee From the 365th Judicial District Court, Maverick County, Texas Trial Court No. 23-04-08507-MCRAJA and 23-04-08508-MCRAJA Honorable Amado J. Abascal III, Judge Presiding Opinion by: Velia J. Meza, Justice Sitting: Irene Rios, Justice Lori I. Valenzuela, Justice Velia J. Meza, Justice Delivered and Filed: August 26, 2026 AFFIRMED IN PART; MODIFIED, REVERSED AND REMANDED IN PART Carrazco-Pena appeals his convictions for sexual assault and indecency with a child by sexual contact. These convictions stem from two separate indictments and cases that were consolidated and tried together. On appeal, Carrazco-Pena challenges (1) the sufficiency of the evidence in appellate cause number 04-25-00347-CR pertaining to his sexual assault conviction, and (2) whether the trial court erred in appellate cause number 04-25-00348-CR by failing to 04-25-00347-CR, 04-25-00348-CR instruct the jury that it must unanimously agree on every element of the offense of indecency with a child before returning a guilty verdict. We hold that the evidence is sufficient and that the trial court did not err in its jury charge. We therefore overrule both issues. However, Carrazco-Pena’s sexual assault conviction was elevated to a first-degree felony under an enhancement provision that did not take effect until 2019, five years after the offense was committed. Applying the enhancement to conduct that predated its enactment rendered the sentence void. We reverse the sentence, modify the judgment to reflect a second-degree felony, and remand for a new punishment trial on the sexual assault conviction only. The judgments in both cause numbers are otherwise affirmed. BACKGROUND On January 30, 2019, L.C. went to the Maverick County Sheriff’s Office to file a report that her stepfather, Carrazco-Pena, sexually abused her on multiple occasions, and as a result, she conceived his child. According to L.C., in 2007, while she was in the fourth grade, Carrazco-Pena would touch her vagina. Later, in 2014, when L.C. was 17, Carrazco-Pena began sexually assaulting her by engaging in sexual intercourse. Javier Gutierrez, a sergeant with the Sheriff’s Office, initiated the investigation, took L.C.’s initial statement, but referred the case over to the Texas Rangers since Carrazco-Pena’s brother worked for the sheriff’s office. After taking over the investigation, Texas Ranger Jose Sanchez began investigating by interviewing L.C., members of her family, and Carrazco-Pena. During his interview, Carrazco- Pena acknowledged that L.C. was his stepdaughter, referred to her as his daughter, and admitted to “rough play” but denied sexual misconduct Ranger Sanchez also obtained buccal swabs from Carrazco-Pena which were submitted for DNA testing. At the conclusion of his investigation, Ranger Sanchez obtained a warrant, and Carrazco-Pena was subsequently arrested. -2- 04-25-00347-CR, 04-25-00348-CR Carrazco-Pena, through two separate indictments, was charged with sexual assault, a second-degree felony, which was enhanced to a first-degree based on L.C.’s status as a person whom he was prohibited from engaging in sexual intercourse or deviate sexual intercourse along with indecency with a child, a second-degree felony. See TEX. PENAL CODE §§ 22.011(f)(1)(B), 21.11. The two cases against Carrazco-Pena were consolidated, and the consolidated jury trial commenced on March 31, 2025. At the conclusion of trial, the jury found Carrazco-Pena guilty of both offenses. He was sentenced by the jury to ninety years’ imprisonment for the sexual assault conviction and twenty years’ imprisonment for the indecency with a child conviction. This appeal followed. DISCUSSION On appeal, Carrazco-Pena raises two issues. First, he challenges the sufficiency of the evidence supporting his conviction of sexual assault. Next, he contends that the trial court erred by failing to instruct the jury that it must unanimously agree on every element of the offense of indecency with a child before returning a guilty verdict. We address each issue in turn. 1. 04-25-00347-CR: Sufficiency of the Evidence In reviewing the legal sufficiency of the evidence, we apply the standard set forth in Jackson v. Virginia. 443 U.S. 307, 319 (1979); see also Brooks v. State, 323 S.W.3d 893, 894–95 (Tex. Crim. App. 2010). Under this standard, we consider all the evidence in the light most favorable to the verdict and determine whether any rational factfinder could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899. In conducting this review, we recognize that the factfinder is the exclusive judge of the witnesses’ credibility and the weight to be given their testimony. Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). We presume that any conflicts in the evidence were resolved by the -3- 04-25-00347-CR, 04-25-00348-CR factfinder in favor of the verdict, and we defer to those determinations. Id. And our review does not entail us reevaluating the evidence or substituting our judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Thus, the relevant inquiry is whether the evidence and reasonable inferences drawn therefrom would allow a rational juror to find every essential element of the charged offense beyond a reasonable doubt. Id. Because L.C. was seventeen at the time of the sexual assault, Carrazco-Pena was indicted under Section 22.011 of the Texas Penal Code, which provides that a person commits the offense if they “intentionally or knowingly cause the penetration of the . . . sexual organ of another person by any means, without that person’s consent.” TEX. PENAL CODE ANN. § 22.011(a)(1)(A) (West 2009). The eleven circumstances constituting a lack of consent are governed by section 22.011(b). Id. § 20.011(b)(1)–(11). In this case, the State’s indictment only alleged that Carrazco-Pena “intentionally and knowingly cause[d] the penetration of the sexual organ of [L.C.], . . . without the consent of [L.C.].” Our sister courts have held, in unpublished opinions, that “the manner in which the sexual assault is without the complainant’s consent is not an element of the offense required to be included in the indictment.” See Ring v. State, No. 14-12-01106-CR, 2014 WL 3778826, at *5 (Tex. App.—Houston [14th Dist.] July 31, 2014, no pet.) (mem. op., not designated for publication); Fongang v. State, No. 07-11-00358-CR, 2013 WL 5460002, at *4 (Tex. App.— Amarillo Sept. 30, 2013, pet. ref’d) (mem. op., not designated for publication). And without “a ‘notice-based motion to quash,’ the State [is] not required to allege in the indictment the specific manner in which [the] sexual assault” was without consent. Ring, 2014 WL 3778826, at *5 (relying -4- 04-25-00347-CR, 04-25-00348-CR on the Court of Criminal Appeals analysis in Geick v. State, 349 S.W.3d 542 (Tex. Crim. App. 2011)). We agree, therefore, the hypothetically correct jury charge in this case would have “authorized conviction if the jury found the sexual assault was without the complainant’s consent for any of the statutory reasons supported by the evidence.” Id. To establish lack of consent under Section 22.011(b)(1), the State must prove that “the actor compel[led] the other person to submit or participate by the use of physical force or violence.” TEX. PENAL CODE ANN. § 22.011(b)(1) (West 2009). “There is no requirement that a certain amount of force be used, only that it is used.” Edoh v. State, 245 S.W.3d 606, 609 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (internal quotation marks omitted). There is also no requirement that the victim of sexual assault resist, instead “the emphasis is . . . upon the actor’s compulsion.” Barnett v. State, 820 S.W.2d 240, 241 (Tex. App.—Corpus Christi–Edinburg 1991, pet. ref’d). Here, the evidence is sufficient to establish that Carrazco-Pena intentionally or knowingly caused the penetration of L.C.’s sexual organ without her consent. See TEX. PENAL CODE ANN. § 22.011(a)(1)(A) (West 2009). Carrazco-Pena was charged with and convicted of a single count of sexual assault. Although the record reflects five separate sexual encounters between him and L.C., our sufficiency review addresses only one. L.C. testified that, sometime around February 2014, Carrazco-Pena laid her on the bed in her mother’s room, pulled down her pants, and penetrated her, telling her “not to tell anybody.” When she began crying and started trying to move away, Carrazco-Pena held her by the legs and continued. L.C. later became pregnant and gave birth to Carrazco-Pena’s child. 1 1 The record does not establish which of the five encounters resulted in pregnancy, but that question is not particularly probative here. Pregnancy establishes, at a minimum, that penetration occurred. -5- 04-25-00347-CR, 04-25-00348-CR The State also had Farah Plopper—a DNA analyst at the University of North Texas Health Science Center—testify about determining the biological relationship between Carrazco-Pena and L.C.’s child. Utilizing known DNA samples from Carrazco-Pena, L.C., and the child, Plopper was able to conduct a short tandem repeat test to examine how many times “small segments or patterns in the DNA that repeat themselves over and over again” in order to “differ[entiate] between individuals.” Based on the DNA test, Plopper determined there was a “99.99999997” percent probability that Carrazco-Pena was the biological father of L.C.’s child. Viewing this evidence in the light most favorable to the verdict, a rational jury could find beyond a reasonable doubt that Carrazco-Pena intentionally or knowingly caused the penetration of L.C.’s sexual organ. Jackson, 443 U.S. at 319. The same evidence establishes lack of consent: holding L.C.’s legs and continuing to engage in sexual intercourse while she attempted to move away is sufficient to show Carrazco-Pena used force to compel her to submit. See Fernandez v. State, No. 07-16-00441-CR, 2018 WL 3131593, at *3 (Tex. App.—Amarillo June 26, 2018, pet. ref’d) (mem. op., not designated for publication) (holding that grabbing victim’s leg and pulling it closer, as well as pushing victim’s shoulders so that she was lying on the couch, constituted force); see also Gonzales v. State, 2 S.W.3d 411, 415 (Tex. App.—San Antonio 1999, no pet.) (“There is no requirement that a certain amount of force be used, only that it is used.”). Accordingly, the evidence is legally sufficient to support a conviction under Section 22.011(a)(1)(A). We overrule Carrazco-Pena’s first point of error. 1.1 The First-Degree Punishment Is Void Although the evidence supports a second-degree conviction under section 22.011(a)(1)(A), Carrazco-Pena was convicted and punished under section 22.011(f)(1)(B) as a first-degree felony. Neither party raises the issue, but we address it sua sponte. A court with jurisdiction over a criminal -6- 04-25-00347-CR, 04-25-00348-CR case may always notice and correct an illegal sentence. See Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). This first-degree felony enhancement was not added until 2019. See Act of May 20, 2019, 86th Leg., R.S., ch. 738, § 2, 2019 Tex. Gen. Laws 2050, 2051 (enacted as TEX. PENAL CODE § 22.011(f)(2)). The retroactivity clause of that amendment provided that “the changes in law made by this Act apply only to an offense committed on or after [September 1, 2019].” Id. § 3. But Carrazco-Pena was charged with committing the offense “on or about the 30th day of January, A.D. 2014.” At the time of the offense, Carrazco-Pena’s conduct was punishable only as a second- degree felony. See TEX. PENAL CODE ANN. § 22.011(f) (West 2014). “A sentence that is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal.” Mizell, 119 S.W.3d at 806. “When an appellate court finds error at the punishment stage of the trial, the case may be remanded to the trial court for the proper assessment of punishment.” Ex parte Rich, 194 S.W.3d 508, 514 (Tex. Crim. App. 2006) (citing Levy v. State, 818 S.W.2d 801, 803 (Tex. Crim. App. 1991)). A second-degree felony carries a punishment range of two to twenty years. TEX. PENAL CODE § 12.33(a). Carrazco-Pena’s 90-year sentence falls outside the maximum range and is therefore illegal and void. Mizell, 119 S.W.3d at 806. We therefore modify the judgment to reflect a second-degree felony sexual assault and remand cause number 04-25-00347-CR to the trial court for a new punishment trial. 2. 04-25-00348-CR: Jury Charge Error Having resolved Carrazco-Pena’s challenge to the sexual-assault conviction, we turn to his second point of error, which concerns only the indecency conviction in cause number 04-25- 00348-CR. He contends that the jury charge failed to instruct the jury that it had to unanimously -7- 04-25-00347-CR, 04-25-00348-CR agree that he engaged in sexual contact with L.C.’s genitals before it could convict him of indecency with a child by contact. We disagree. Carrazco-Pena relies on Pizzo v. State, in which the Court of Criminal Appeals held that touching a child’s anus, breast, and genitals are separate criminal acts for purposes of indecency with a child by contact. Pizzo v. State, 235 S.W.3d 711, 715 (Tex. Crim. App. 2007). In Pizzo, the jury charge permitted conviction based on alternative body-part theories, creating a risk that the verdict was not unanimous. Id. at 715–16. Carrazco-Pena’s reliance on Pizzo is misplaced because the charge in this case did not submit alternative theories in the application paragraph. Although the abstract portions of the charge tracked the statutory definition of “sexual contact” and referred to touching the anus, breast, or genitals, the application paragraph narrowed the jury’s consideration to the State’s elected theory. Specifically, the application paragraph authorized conviction only if the jury found beyond a reasonable doubt that Carrazco-Pena “engage[d] in sexual contact with [L.C.], by touching the genitals of [L.C.].” The charge therefore did not permit conviction based on alternative theories of touching the complainant’s breasts or anus. Texas courts have repeatedly recognized that the application paragraph is the controlling portion of the charge because it applies the law to the facts of the case. See Vasquez v. State, 389 S.W.3d 361, 367 (Tex. Crim. App. 2012). Thus, even assuming the abstract definition was broader than necessary, the application paragraph confined the jury to a single criminal act—touching L.C.’s genitals. Because the jury was not authorized to convict on alternative theories, the charge did not present the non-unanimity problem addressed in Pizzo. See Bazanes v. State, 310 S.W.3d 32, 42–43 (Tex. App.—Fort Worth 2010, no pet.) (holding that any deficiency in the abstract -8- 04-25-00347-CR, 04-25-00348-CR portion of the charge did not result in egregious harm where the application paragraph correctly instructed the jury on the offense as charged). We overrule Carrazco-Pena’s second point of error. CONCLUSION Accordingly, we affirm the trial court’s judgment in appellate cause number 04-25-00348- CR. We modify the Carrazco-Pena’s sexual assault conviction in appellate cause number 04-25- 00347-CR to reflect a conviction of a second-degree felony sexual assault, affirm the judgment of conviction as modified, and remand the case to the trial court for a new punishment trial. See TEX. CODE CRIM. PRO. art. 44.29(b). Velia J. Meza, Justice DO NOT PUBLISH -9-