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Smith v. State

The appellant appeals a judgment convicting him for continuous sexual assault of a child, for which he was sentenced to 70 years in prison. The evidence is sufficient; the erroneous jury instruction concerning the failure to expressly require two acts of sexual abuse during a period of 30 or more days in duration constitutes harmless error; the trial court did not abuse its discretion by excluding evidence of text messages and voicemail recordings left by the complainant's mother to appellant. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-09-00749-CR, 03-10-2011.

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OPINION

Appellant, Jesse James Smith, appeals a judgment convicting him for continuous sexual assault of a child, for which he was sentenced to 70 years in prison. See TEX. PENAL CODE ANN. § 21.02 (WEST SUPP. 2010). In six issues, appellant challenges the sufficiency of the evidence, the instruction to the jury that purportedly assumed an element of the offense, and the trial court’s exclusion of text and voice messages that appellant wanted to use to impeach a witness. We conclude that the evidence is sufficient, that the erroneous jury instruction concerning the failure to expressly require two acts of sexual abuse during a period of 30 or more days in duration constitutes harmless error, and that the trial court did not abuse its discretion by excluding evidence of text messages and voicemail recordings left by the complainant’s mother to appellant. We affirm.

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