MAJORITY OPINION A jury convicted appellant Esteban Pelcastre of the first-degree felony of continuous sexual abuse of a young child. Tex. Penal Code Ann. § 21.02(b), (h).[1] The jury assessed punishment of imprisonment for 45 years. Id. § 21.02(h). In three issues, appellant contends (1) the evidence was insufficient to support his conviction, (2) the jury charge was erroneous, and (3) his trial lawyer provided ineffective assistance of counsel. We affirm. I.BACKGROUND Appellant and complainant lived in the same trailer park. They met when complainant was 13-years old and appellant was in his forties. Complainant testified that, after a party at a neighbor’s house when she was 13, she left to feed her pet rabbits behind her family’s home. Complainant testified that appellant followed her and put his “private part” in her “private part.” Complainant testified that this behavior occurred on five to ten occasions. When asked if this behavior “happened for more than 30 days,” complainant responded, “Yes.” Complainant was evaluated at the Children’s Assessment Center in Houston when she was still 13-years old. At the evaluation, complainant stated that a man named Esteban, who was in his 30s or 40s, had “raped” her by putting his penis in her vagina. At the assessment, complainant stated that this conduct happened more than once when she was 13-years old, with the last incident occurring a few weeks before the assessment. II.ANALYSIS A. Evidentiary sufficiency In issue 1, appellant challenges the sufficiency of the evidence supporting his conviction. In determining whether the evidence is sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the jury. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We defer to the jury’s resolution of any conflicting inferences from the evidence and presume that it resolved such conflicts in favor of the judgment. Jackson, 443 U.S. at 326; Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014). A person 17 years of age or older commits the offense of continuous sexual abuse of a young child if, “during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse” against a child younger than 14 years of age. Tex. Penal Code Ann. § 21.02(b)(1). Appellant does not dispute that the evidence is legally sufficient to show that, during the relevant time period, he was “17 years of age or older and the victim [was] a child younger than 14 years of age.” Id. § 21.02(b)(2). Likewise, appellant does not dispute that the evidence is legally sufficient to show that he committed “two or more acts of sexual abuse” against complainant. Id. § 21.02(b)(1). Instead, appellant argues the evidence is legally insufficient to prove that he committed two or more acts of sexual abuse “during a period that is 30 or more days in duration.” Id. Complainant testified at trial that appellant penetrated her vagina with his penis five to ten times when she was 13-years old. See Tex. Penal Code Ann. § 21.02(c)(4) (defining “act of sexual abuse” to include “aggravated sexual assault under Section 22.021″); see also Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) (defining aggravated sexual assault to include “caus[ing] the penetration of the anus or sexual organ of a child by any means”). Complainant further testified that the last incident of abuse occurred “a few weeks before” her assessment at the Children’s Assessment Center. In addition, complainant testified as follows: Q. Okay. Do you remember telling us that you and Esteban talked for more than a month? A. Yes. Q. During that time span when you and Esteban were talking for more than a month, was he still meeting you by the rabbit cage? A. Yes. Q. And was he still touching you? A. Yes. Q. And was he still putting his private part inside of your private part? A. Yes. Q. And that happened for more than 30 days? A. Yes. Viewed in the light most favorable to the verdict, complainant’s testimony showing that appellant “put[] his private part inside of [complainant's] private part” on multiple occasions over a period that was “more than 30 days” is legally sufficient to prove that appellant committed two or more acts of sexual abuse against complainant “during a period that is 30 or more days in duration.” Tex. Penal Code Ann. § 21.02(b)(1). Appellant argues that the evidence is so vague “such that the jury could only speculate as to when the sexual acts occurred.” The State, however, “need not prove the exact dates of the abuse, only that there were two or more acts of sexual abuse that occurred during a period that was thirty or more days in duration.” Buxton v. State, 526 S.W.3d 666, 676 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d) (quotation omitted). In addition, the statute provides that “members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed.” Tex. Penal Code Ann. § 21.02(d) (further providing “[t]he jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse”); see also Smith v. State, 340 S.W.3d 41, 49 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (in appeal of conviction for continuous sexual abuse of child, holding that vagueness as to dates is for jury to reconcile and does not reduce complainant’s testimony to legal insufficiency). Appellant further argues that complainant’s testimony that “that happened for more than 30 days” is ambiguous, as it might refer either to her communications with appellant or to appellant “putting his private part inside of [complainant's] private part.” Complainant’s testimony that “that happened for more than 30 days,” however, directly follows the State’s question about when appellant was “putting his private part inside of [complainant's] private part.” Viewing this testimony in the light most favorable to the verdict, the jury could have determined that the time period in question referred to appellant’s abuse of complainant, not simply to their communications. Finally, Appellant argues there is conflicting testimony in the record as to when the incidents of abuse occurred. For example, complainant at one point testified that the last act of abuse occurred when she was 14-years old, which is inconsistent with other evidence that the last act occurred when complainant was 13-years old. It is, however, the province of the jury to resolve conflicts in the evidence, and the jury may reject any part or all of a witness’s testimony in order to reconcile conflicts. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008); see also Estrella v. State, 546 S.W.3d 789, 796–97 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d) (“Inconsistencies or contradictions in a witness’s testimony do not destroy that testimony as a matter of law.”) (citing McDonald v. State, 462 S.W.2d 40, 41 (Tex. Crim. App. 1970)). We overrule issue 1. B. Charge error In issue 2, appellant argues the jury charge was erroneous because it allowed the jury to convict appellant on a finding that two or more acts of sexual abuse occurred at any time over a period that was more than 30 days in duration, regardless of whether the acts themselves were separated by the time period required by the statute. See Tex. Penal Code Ann. § 21.02(b)(1). In determining whether there is reversible error in the jury charge, we first decide whether error exists, and if error exists, then we determine whether the defendant was harmed. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). An appellate court must apply the egregious harm standard to review an erroneous jury charge when the appellant’s trial lawyer did not to object to the relevant portion charge, as in this case. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). Under this standard, appellant “will obtain a reversal only if the error was so egregiously harmful that he has not had a fair and impartial trial.” Id. (op. on reh’g). As above, a person commits the offense of continuous sexual abuse of a child “if: (1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse[.]” Tex. Penal Code Ann. § 21.02(b). The First Court of Appeals has interpreted this language to mean “ there is at least 28 days between the day of the first act of sexual abuse and the day of the last act of sexual abuse.” Smith, 340 S.W.3d at 51. The charge in the instant case states, in relevant part: Our law provides that a person commits an offense if during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and, at the time of the commission of each of the acts of sexual abuse, the person was 17 years of age or older and the victim is a child younger than 14 years of age, regardless of whether the actor knows the age of the victim at the time of the offense. . . . . In order to find the defendant guilty of the offense of continuous sexual abuse of a child, you are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. However, in order to find the defendant guilty of the offense of continuous sexual abuse of a child, you must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse. Now, if you find from the evidence beyond a reasonable doubt that in Harris County, Texas, the defendant, Esteban Pelcastre, theretofore on or about the 12th day of December, 2017 through on or about the 16th day of March, 2018, did then and there unlawfully, during a period of time of thirty or more days in duration, commit at least two acts of sexual abuse against a child younger than fourteen years of age including an act constituting the offense of aggravated sexual assault of a child, committed against [complainant] on or about December 12, 2017, and an act constituting the offense of aggravated sexual assault of a child, committed against [complainant] on or about March 16, 2018, and the defendant was at least seventeen years of age at the time of the commission of each of those acts, then you will find the defendant guilty of continuous sexual abuse of a child, as charged in the indictment. (Emphasis added).[2] Appellant argues that the phrase “during a period of time of thirty or more days in duration” in the bolded section above could be read to simply describe the time period at issue in the indictment, as opposed to requiring that the acts at issue be separated by a period of at least 28 days as mandated by the statute. See Tex. Penal Code Ann. § 21.02(b). In Smith, the First Court of Appeals determined that a charge was erroneous when it stated that the jury could convict the appellant if it determined that, “on or about the 1st day of December, 2007, through the 1st day of September, 2008, which said time period being a period that was 30 days or more in duration, in Brazoria County, Texas, the defendant, Jesse James Smith, committed two or more acts of sexual abuse.” Id. at 50. The First Court explained: The precise phrasing in the application paragraph does not specifically require a finding that the last act of sexual abuse occurred on at least the 29th day after the day of the first act. Rather, it allows a finding of guilt if two or more acts of sexual abuse occurred “on or about the 1st day of December, 2007, through the 1st day of September, 2008, which said time period being a period that was 30 days or more in duration.” This instruction lacks clarity in that, read literally, it allowed the jury to find appellant guilty so long as two or more acts of sexual abuse occurred between December 2007 and September 2008 regardless of whether the acts occurred at least 30 days apart. Thus, for example, if the jury had found beyond a reasonable doubt that during the first week in August 2008, appellant committed two acts of sexual abuse against the complainant, the application paragraph read literally would have allowed the jury to convict even though the acts would not have occurred at least 30 days apart. The application paragraph of the charge is erroneous because it does not specifically require that the jury determine that two or more acts of sexual abuse occurred during a period at least 30 days in duration—i.e., that there is at least 28 days between the day of the first act of sexual abuse and the day of the last act of sexual abuse. Id. at 50–51. The error in Smith was more egregious than in the case before us. In Smith, the language at issue “which said time period being a period that was 30 days or more in duration” clearly modified the period of time in the indictment. In the instant case, it is unclear as to whether the phrase “during a period of time of thirty or more days in duration” modifies the period of time alleged in the indictment or the commitment of two or more acts of sexual abuse. Appellate courts have split as to whether such language is sufficiently confusing to the jury to constitute charge error. In Turner v. State, the Amarillo Court of Appeals, building on the reasoning of Smith, determined that language very similar to the charge in this case constituted charge error. Turner, 573 S.W.3d 455, 461–63 (Tex. App.—Amarillo 2019, no pet.). The charge in Turner stated that the jury could convict the defendant of continuous sexual abuse if it determined that the defendant, “on or about June 1, 2013 through August 1, 2013, in the County of Randall, and State of Texas, during a period that was 30 days or more in duration and when the Defendant was 17 years of age or older, did intentionally or knowingly commit two or more acts of sexual abuse.” Id. at 462. The Amarillo Court of Appeals explained that, “[w]hile someone with an understanding of the statute might argue that this provision is clear, the express language used does not make it clear that the first and last acts must occur thirty or more days apart.” Id. In an unpublished, non-precedential decision issued a month after Turner, however, our court determined that language extremely similar to both the language in the instant case and the language in Turner was not charge error, although that case did not address either Smith or Turner. See Moreno v. State, No. 14-18-00113-CR, 2019 WL 2000905, at *2–3 (Tex. App.—Houston [14th Dist.] May 7, 2019, pet. ref’d) (mem. op., not designated for publication) (no error in charge that read defendant “on or about . . . August 26, 2013 continuing through August 2, 2016, did then and there unlawfully, during a period of thirty or more days in duration, commit at least two acts of sexual abuse”).[3] At the very least, the appellate courts’ conflicting decisions about whether the language in the application paragraph before us is sufficiently confusing to constitute charge error counsels in favor of proceeding to a harm analysis.[4] See Campbell v. State, No. PD-0449-21, 2022 WL 4360671, at *4 (Tex. Crim. App. Sept. 21, 2022) (proceeding with harm analysis after noting that, when charge included both correct and incorrect definitions, “it was at least possible that the jury could have relied on the improper definition in convicting Appellant, notwithstanding the inclusion of the other proper theories and definitions”).[5] Because appellant did not object to this portion of the charge in the trial court, we review for egregious harm. Almanza, 686 S.W.2d at 171 (op. on reh’g). Egregious harm must be based on a finding of actual, rather than theoretical, harm. Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011). For actual harm to be established, the charge error must have affected the very basis of the case, deprive the defendant of a valuable right, or vitally affected a defensive theory. Id. Under the egregious-harm standard, we weigh four factors: (1) the charge as a whole; (2) the state of the evidence, including contested issues and the weight of the probative evidence; (3) the parties’ arguments; and (4) all other relevant information in the record. Id. 1. The charge as a whole While appellant contends the charge contains error in the application paragraph for the continuous-sexual-abuse offense, the charge twice states the correct standard, tracking the language of the statute, earlier in the charge.[6] “While this consideration alone is not enough to say that error was not egregious, it does mitigate against a finding in that regard.” Turner, 573 S.W.3d at 463 (addressing similar charge error in continuous-sexual-abuse case); see also Campbell, 2022 WL 4360671, at *5 (“[F]actor one suggests that Appellant suffered no actual harm because the application section of the charge helped to ameliorate any error within the abstract portion.”). 2. The state of the evidence The State’s case centered on complainant’s testimony. Complainant testified that appellant sexually abused her five to ten times “for more than 30 days.” Complainant could not recall specific dates of abuse. While appellant attacked complainant’s credibility, appellant did not present affirmative evidence showing that the acts of abuse occurred over a period of fewer than 30 days. We conclude the state of the evidence does not indicate that any charge error caused actual, rather than theoretical, harm under the egregious-harm standard. See Cosio, 353 S.W.3d at 777. 3. The parties’ arguments Closing arguments focused heavily on the element that the acts of abuse must occur “during a period that is 30 or more days in duration.” Tex. Penal Code Ann. § 21.02(b). In closing, the State emphasized that, per the statute, the abuse must have occurred during a period that is 30 or more days in duration: Next, during a period of time of 30 days or more in duration. Now, I expect that when I sit down and [defense counsel] comes before you, I expect him to really focus on this element. I anticipate that he’s going to tell each of you that we didn’t prove this element. That we can’t prove that it happened 30 days or more in duration. But we did prove that to you. We proved that to you through the best evidence in this case, and that’s [complainant]. [Complainant] told you yesterday when she testified, and I asked her directly: “Did this happen more than 30 days in duration?” Her answer was, “Yes, it did.” We’ve met that element. Likewise, the State argued the evidence showed that the abuse began in December 2017 and continued until March 2018, a period that satisfies the statute. While appellant notes that the State at one point stated, as to the dates alleged in the indictment, “[i]t’s a date range, and that’s what’s most important,” this statement does not indicate that the jury did not have to determine that the abuse occurred over “a period that is 30 or more days in duration.” Tex. Penal Code Ann. § 21.02(b)(1). As appellant points out, his trial lawyer misstated the applicable standard during closing argument. Appellant’s trial lawyer first correctly stated, “The State tells you that a person commits an offense during the period that is 30 or more days in duration, the person commits two or more sexual assault acts.” However, appellant’s lawyer then incorrectly summarized this requirement: “Basically commits two or more sexual acts of aggravated sexual assault within 30 days, then [appellant] is guilty.” Later in the argument, though, defense counsel argued that, as to the December 2017 and March 2018 dates in the indictment, the State “used those dates because they’re outside of 30 days.” Counsel further stated there was “reasonable doubt that this—one, if anything happened, but that it happened within a 30—more than a 30-day period,” and that the State’s evidence did not prove that appellant “forcibly raped [complainant], and that he did it over a longer period of time than 30 days.” These statements are consistent with a correct interpretation of the statute. Likewise, as to whether the jury could consider the lesser-included offenses of aggravated sexual assault, defense counsel confusingly stated, “What the Judge is telling you is if you can’t find that it happened more than two times in 30 days or came outside of that 30-day period, then you can consider the other charge of aggravated sexual assault.” Defense counsel later clarified, however, that the jury was to consider the lesser-included offenses if they determined that the abuse “only happened within a couple of days” or “[i]f you believe that this didn’t happen more than 30 days,” statements again consistent with the requirements of the statute. Ultimately, the parties’ arguments do not support a determination of egregious harm. 4. Other relevant information in the record Our review of the record does not reveal other information, such as jury notes indicating the jury was confused about the charge, showing egregious harm. Having weighed the relevant factors, we conclude the record does not show that egregious harm resulted from any charge error in this case. Accordingly, we overrule issue 2. C. Ineffective assistance of counsel In issue 3, appellant argues he did not receive effective assistance of counsel. Both the federal and state constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10. This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986) (applying Strickland standard to ineffective-assistance claims under Texas Constitution). To prevail on his claims of ineffective assistance of counsel, appellant must prove (1) counsel’s representation fell below the objective standard of reasonableness and (2) a reasonable probability that, but for counsel’s deficiency, the result of the proceeding would have been different. See Strickland, 466 U.S. at 687–88; Hernandez, 726 S.W.2d at 55. In considering an ineffective-assistance claim, we indulge a strong presumption that counsel’s actions fell within the wide range of reasonable professional behavior and were motivated by sound trial strategy. Strickland, 466 U.S. at 689; Duncan v. State, 717 S.W.2d 345, 347–48 (Tex. Crim. App. 1986). Appellant first argues that his trial lawyer was ineffective because he did not object that the portions of the charge setting forth the requirement that the acts of abuse at issue occur over “a period that is 30 or more days in duration” were unclear. See Tex. Penal Code Ann. § 21.02(b)(1). We noted above that appellate courts have split on the question of whether language similar to this charge constitutes charge error. See supra note 3. The court of criminal appeals has explained that, “[b]ecause the law is not an exact science and it may shift over time, the rule that an attorney is not liable for an error in judgment on an unsettled proposition of law is universally recognized.” Ex parte Chandler, 182 S.W.3d 350, 358 (Tex. Crim. App. 2005). Given the state of the law on charge error in continuous-sexual-abuse cases, we conclude that defense counsel did not render ineffective assistance of counsel by not objecting to the language of the charge. Appellant next argues that his trial lawyer was deficient for misstating the requirements of the statute during closing argument as detailed above. As previously discussed, however, trial counsel primarily stated the correct standard in closing argument. The standard for effective assistance does not require “errorless or perfect counsel,” and “[i]solated instances in the record reflecting errors of commission or omission do not cause counsel to become ineffective, nor can ineffective assistance of counsel be established by isolating or separating out one portion of the trial counsel’s performance for examination.” Bridge v. State, 726 S.W.2d 558, 571 (Tex. Crim. App. 1986). On this record, we cannot say that counsel’s conduct was “so outrageous that no competent attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quotation omitted). We overrule issue 3. III.CONCLUSION We affirm the trial court’s judgment as challenged on appeal. /s/Charles A. Spain Justice Panel consists of Justices Spain, Poissant, and Wilson (Wilson, J., concurring). Publish —Tex. R. App. P.47.2(b).
