In The
Court of Appeals
Ninth District of Texas at Beaumont
NO. 09-24-00352-CR
ALAN CHRISTOPHER NAVA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 23-02-01869-CR
MEMORANDUM OPINION
A jury found Alan Christopher Nava guilty of the first-degree felony offense
of continuous sexual abuse of a child as charged in the indictment, and the trial judge
sentenced him to seventy years’ imprisonment. See Tex. Penal Code Ann. §§
21.02(b), (h) (addressing continuous sexual abuse of a young child), 12.32 (outlining
first-degree felony punishment). Nava challenges his conviction in five issues and
argues it was error to allow the State to amend the indictment on the eve of trial, to
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allow more than one outcry witness, to admit evidence of prior domestic violence as
extraneous offenses, to limit cross-examination of the complainant, and to deny a
lesser included offense in the jury charge. As discussed below, we affirm the trial
court’s judgment.
Background
On April 27, 2023, a Montgomery County grand jury indicted Nava on one
count of continuous sexual abuse of Ida.1 See id. § 21.02(b). According to the
indictment, during a period that was thirty or more days in duration, Nava committed
two or more acts of sexual abuse by intentionally and knowingly causing his hand
and his sexual organ to penetrate the sexual organ of Ida, a child younger than
fourteen years of age.
In September 2024, Nava was reindicted, and the indictment specified the
following:
Indecency with a child by then and there, with intent to arouse and
gratify the sexual desire of the defendant, engage in sexual contact by
touching the genitals of [Ida], a child younger than 17 years of age,
Indecency with a Child by then and there, with the intent to arouse and
gratify the sexual desire of the defendant, engage in sexual contact with
1
We refer to the victims by pseudonyms to conceal their identities. See Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”); Smith v. State, No. 09-17-00081-CR, 2018 WL 1321410, at *1 n.1 (Tex. App.—Beaumont Mar. 14, 2018, no pet.) (mem. op., not designated for publication).
2
[Ida], a child younger than 17 years of age, by having [Ida] touch the
defendant’s genitals,
Aggravated Sexual Assault of a Child by then and there intentionally
or knowingly causing the defendant’s hand or a portion thereof to []
penetrate the sexual organ of [Ida], a child, who was then and there
younger than 14 years of age,
Aggravated Sexual Assault of a Child by then and there intentionally
or knowingly cause the defendant’s mouth to contact or penetrate the
sexual organ of [Ida], a child who was then and there younger than 14
years of age,
Aggravated Sexual Assault of a Child by then and there intentionally
or knowingly causing the defendant’s sexual organ to contact or
penetrate the sexual organ of [Ida], a child who was then and there
younger than 14 years of age[.]
Nava’s trial began in October 2024, and at trial, the State called seven
witnesses, including Ida. Nava testified on behalf of himself and called one
additional witness.
Issue One: Indictment
In his first issue, Nava challenges an amendment to the indictment on the eve
of trial. According to Nava, the State abandoned certain language in the indictment,
specifically the phrase “contact or” and this amendment should require a ten-day
continuance under article 28.10 of the Texas Code of Criminal Procedure. The State
responds that the indictment was not amended, rather it abandoned the alternative
allegation of genital “contact.” The State contends that this abandonment is not an
amendment since it did not affect the substance of the charging instrument.
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In relevant part, article 28.10 provides: “After notice of the defendant, a matter
of form or substance in an indictment or information may be amended at any time
before the date the trial on the merits commences.” Tex. Code Crim. Proc. Ann. art.
28.10(a). It further provides: “On the request of the defendant, the court shall allow
the defendant not less than 10 days, or a shorter period if requested by the defendant,
to respond to the amended indictment or information.” Id. Article 28.11 requires that
“[a]ll amendments of an indictment or information shall be made with the leave of
the court and under its direction.” Id. art. 28.11.
Not all alterations of an indictment are amendments. Courts have held that an
amendment is an alteration to the face of the charging instrument which affects the
substance of the charging instruments. See Eastep v. State, 941 S.W.2d 130, 132
(Tex. Crim. App. 1997), overruled on other grounds by Gollihar v. State, 46 S.W.3d
243, 256 (Tex. Crim. App. 2001) and Riney v. State, 28 S.W.3d 561, 565 (Tex. Crim.
App. 2000); see also Fury v. State, 607 S.W.3d 866, 872 (Tex. App.—Houston [14th
Dist.] 2020, pet. ref’d). An abandonment does not affect the substance of the
charging instrument. Eastep, 941 S.W.2d at 133; Fury 607 S.W.3d at 873. A change
of language in an indictment is appropriate to (1) abandon one or more alternative
means of committing the offense, (2) abandon an allegation if the effect is to reduce
the charged offense to a lesser included offense, or (3) eliminate surplusage. Eastep,
941 S.W.2d at 135; Fury 607 S.W.3d at 873; see also Chen v. State, 410 S.W.3d
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394, 396 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d). In these situations, an
alteration to an indictment is an abandonment, not an amendment, and the
restrictions of articles 28.10 and 28.11 do not apply. Eastep, 941 S.W.2d at 134–35.
Here, the third paragraph of the indictment read as follows:
Aggravated Sexual Assault of a Child by then and there intentionally
or knowingly causing the defendant’s hand or a portion thereof to
contact or penetrate the sexual organ of [Ida], a child, who was then and
there younger than 14 years of age[.]
Below the paragraph, the State handwrote “abandoned by State” with the name of
the attorney and the date of September 30, 2024.
It is clear from the wording that the State sought abandonment of the
allegations of the manner and means of committing the offense and not to amend the
indictment as governed by article 28.10. The substance of the remaining allegations
was not affected. Generally, the State may abandon an allegation as to manner or
means of committing an offense and proceed on any remaining offense. See id. at
133. In that instance, the restriction in article 28.10 limiting the amendment of an
indictment or information to “any time before the date the trial on the merits
commences” is inapplicable. Tex. Code Crim. Proc. Ann. art. 28.10.
We overrule issue one.
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Issues Two through Four: Evidence Admissibility
Next, in three arguments, Nava challenges evidence presented to the jury
during the guilt/innocence phase of trial. In his second issue, Nava argues that the
trial court permitted more than one outcry witness to testify before the jury.
According to Nava, Ida’s mother (“Mother”), testified that Ida revealed via a text
message that Nava had been inappropriately touching her. Nava argues that later the
SANE nurse who examined Ida served as the official outcry witness and testified
about Ida’s statements. He contends that because Mother was the first person that
Ida informed, it was error to designate the SANE as the outcry witness, and this
repetitive hearsay bolstered Ida’s credibility and reinforced the accusations.
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)
(op. on reh’g). The trial court’s decision will not be disturbed unless it is outside the
“zone of reasonable disagreement[.]” Id. “We will not reverse a trial court’s decision
to admit or exclude evidence unless the record shows a clear abuse of discretion.”
Munoz v. State, 288 S.W.3d 55, 57 (Tex. App.—Houston [1st Dist.] 2009, no pet.)
(citing Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003)) (other citation
omitted).
We also review a trial court’s designation of an outcry witness for an abuse of
discretion. See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990). “The
6
trial court has broad discretion to determine which of several witnesses is an outcry
witness, and we will not disturb this decision absent a clear abuse of discretion.”
Guzman v. State, 591 S.W.3d 713, 722 (Tex. App.—Houston [1st Dist.] 2019, no
pet.) (citation omitted).
Outside the jury’s presence, the trial court conducted a hearing to determine
the outcry witness. During the hearing, four people testified. The State argued that
of the four witnesses, the SANE is the appropriate outcry witness as to four of the
five alleged acts due to the specificity provided in conjunction with the necessary
elements to prove the continuous sexual abuse such as the acts taking place thirty or
more days apart. According to the State, Ida provided the necessary details to the
SANE that would allow her as an outcry witness to the following: (1) Nava’s hand
to Ida’s sexual organ; (2) Nava’s finger penetrating Ida’s sexual organ; and (3)
Nava’s sexual organ to Ida’s sexual organ. The State argued that Ida outcried to the
forensic interviewer about one specific instance of Nava’s mouth to Ida’s sexual
organ and reminded the Court that multiple outcry witnesses to separate acts is
permissible.
First, Mother testified that she received a text message from Ida on December
1, 2022, that Nava had been touching Ida since they lived at The Abbey apartment
complex. Mother explained that later that night at their apartment, Ida said that Nava
touched her “private parts[,]” and Mother assumed it was her vagina. Ida did not
7
provide details about how often it occurred during that conversation, and that same
night Ida also spoke with Grandmother, Mother’s mother, about the sexual abuse.
Though she was around when Ida spoke with Grandmother, she did not overhear Ida
detailing any alleged specific acts against Nava.
On cross-examination, Mother testified that Ida told them that Nava had been
touching her since they lived at The Abbey apartment complex when they watched
movies or when Mother was at the grocery store. Mother stated that she then left the
room. Ida did not state how often it happened, and Mother acknowledged that she
was “in a very high emotional state” at the time, so her memory is not clear.
Next, Grandmother testified that she saw the text that Ida sent Mother, and
Ida told her that Nava had been touching her for a while when they lived in their
previous apartment when they watched movies at night. Ida told Grandmother that
when her brother fell asleep and when Mother was at work, Nava would touch her.
Ida indicated to Grandmother that Nava “touched her in her area[,]” and “he had
[Ida] touch his thing[.]” At that time, Ida did not clarify what “thing” meant, but
Grandmother testified that she knew what it meant. Grandmother stated that Ida did
not clarify what “area” meant either, but Grandmother believed it to be her vagina,
although she did not “know that for a fact.” Grandmother testified that Ida was asked
if Nava ever put his thing in her area, and Ida indicated that he tried but it did not
work. She stated that this was when the conversation with Ida ended.
8
On cross-examination, Grandmother stated that Mother arrived at the
apartment before her, but when Grandmother arrived, Mother indicated she had not
spoken to Ida yet. Grandmother testified she and Mother called Ida into Mother’s
room and asked what happened. Ida told them that Nava “had been touching her in
her area” as often as three times a week. Ida did not specify what part of Nava’s body
touched her private area. Grandmother stated that Ida specified where they lived and
that it occurred three times a week. Grandmother explained that other details, such
as if it occurred at Nava’s apartment, did not come out that night but later did.
Grandmother believed that the conversation with Ida took twenty to thirty minutes.
Next, Kimberly Smith, a registered nurse, testified that she became a forensic
nurse examiner in 2022 and had performed approximately 350 exams. Smith
explained that to become a SANE she had to complete a forty-hour course for adults
and a forty-hour course for pediatrics to learn how to ask questions and perform the
medical forensic exam. Smith stated that on December 1, 2022, she performed an
examination on Ida at St. Luke’s in The Woodlands. Smith indicated that she spoke
with Ida and got her medical forensic history to treat Ida, and she documented the
information under history of event. She conducted the exam and created the medical
forensic chart for medical purposes and diagnosis, which is common in her practice.
Smith identified the chart she prepared when she examined Ida and testified
that Ida reported that her stepdad had been sexually abusing her for three years, and
9
she informed Mother that day. Ida stated that she was nine years old when Nava
began abusing her. Ida told Smith that her stepdad came into her room every night
and touched her “in areas” and make her “touch his area.” Ida indicated this
happened when Mother worked late, or when her brother was away. Ida added that
if her brother was home, her stepdad put on a movie and when her brother fell asleep,
her stepdad sexually abused her.
According to Smith, Ida motioned her genitalia when asked what areas of her
body her stepdad touched, and Ida called that area her “private area.” Ida explained
to Smith that he touched her under her clothes, and his fingers and hand went inside
her body. Ida indicated that her stepdad did not use anything else to touch her private
area. Smith testified that Ida identified Nava as her stepdad and reported that he
sexually abused her three or more times a week for approximately three years. Ida
told Smith that it last happened around two months ago, and she was last alone with
Nava a few days prior.
Smith testified that Ida stated that she did not feel safe at home when Nava
was around, and that he was abusive during his marriage to Mother. Ida indicated
that she felt safe leaving that night.
Smith indicated that during the interview, Ida stated that Nava tried to put his
private area into her private area, but he did not. Ida denied that Nava put his private
area on her mouth or into her anus and denied that Nava put his mouth on her anus.
10
Ida relayed that Nava’s fingers went inside her private area and that he asked her to
touch his private area. Ida told Smith that Nava’s fingers did not go inside her anus,
and he never used anything, such as a toy, to touch her body. Ida never saw
ejaculation occur, and she stated that she bled once after an incident. Ida stated that
Nava never used a contraceptive device and never took inappropriate photos or
videos of her. Finally, Ida indicated that she was never forced to take drugs or
medicine when she was not sick.
Selena Mowrer, a bilingual forensic interviewer at Children’s Safe Harbor,
was the final witness at the hearing. Mowrer testified that she interviewed Ida on
December 7, 2022, and at that time, Ida was eleven years old. She stated that during
the interview, Ida disclosed continuous sexual abuse between the ages of nine and
eleven, and Ida stated that Nava was “putting his area” to the area “for peeing in
between her thighs and moving it back and forth[.]” Ida added that Nava made her
hold his area, attempted to put his area in her private area, and he touched her behind
over and under her clothes.
According to Mowrer, Ida described lying on her side with Nava behind her
and Nava would put his area between her thighs and move up and down. Ida stated
that Nava had removed her pants and underwear, as well as his pants, and his area
was touching her private area and her behind. She described both her area and Nava’s
11
area as the area “used for peeing.” Ida told her that during one incident, Nava used
his hand to touch from her ankle to her hip area over and under her clothes.
Mowrer testified that Ida described an incident when Nava used her leg to rub
the area. Ida also disclosed that Nava would make her grab his area with her hands.
Mowrer stated that Ida described the first time that Nava touched her and said it was
when Ida and her brother shared a room. Ida stated that Nava invited them to watch
a movie, and he laid blankets on the floor, but her brother stayed on the bed. Ida
joined Nava on the floor, and Ida disclosed that once her brother was asleep, Nava
used his hand to touch her leg, thigh and behind. Ida said that “she froze,” and this
continued over and under her clothes until the movie was over, then Nava left.
Mowrer testified that Ida also described an incident where Nava lay on his
side behind her and put his area between her thighs. At the same time, Nava would
put his fingers in her private area. Ida further described a time when Nava had his
area between her thighs, and he then put Ida on her knees. Ida told Mowrer that her
head was face down in the pillow, and Nava kneeled behind her and attempted to
put his private area in her private area but “it didn’t fit.” Nava then put Ida back on
her side and continued with his area between her thighs. This occurred at The Retreat
Apartments before Mother and Nava separated.
12
According to Mowrer, Ida also described a time when Nava put her hands on
his penis and moved them back and forth. Ida managed to describe where they lived
when these incidents took place.
At the end of the hearing, the trial court designated the SANE as the outcry
witness and stated that “the statement of the SANE nurse is reliable based on the
time, content, and circumstances of the statement[.]”
“Article 38.072 is a rule of admissibility of hearsay evidence[,]” allowing for
the admission of a child victim’s out-of-court statements describing the alleged
sexual or physical abuse under specified, enumerated circumstances. Martinez v.
State, 178 S.W.3d 806, 810 (Tex. Crim. App. 2005) (discussing the limitations of
article 38.072); see Tex. Code Crim. Proc. Ann. art. 38.072; see also Lopez v. State,
343 S.W.3d 137, 140, 144 (Tex. Crim. App. 2011) (describing the outcry statute as
permitting “hearsay testimony” from an “outcry witness”). Article 38.072 applies to
statements that describe “the alleged offense.” Tex. Code Crim. Proc. Ann. art.
38.072 § 2(a)(1)(A). In this case, “the alleged offense” was continuous sexual abuse
of a child, which requires the commission of at least two acts of sexual abuse,
separated by thirty days or more in duration. See Tex. Penal Code Ann. §
21.02(b)(1). Thus, “the alleged offense” in this case had a required elements of (1)
two or more acts of sexual abuse, and (2) occurring over a duration thirty days or
more. See id. A proper outcry witness is the first adult “‘to whom the child makes a
13
statement that in some discernible manner describes the alleged offense.’” Rosales
v. State, 548 S.W.3d 796, 806 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d)
(quoting Garcia, 792 S.W.2d 91). “Simply put, the outcry witness is the first adult
to whom the child tells ‘how, when, and where’ of the assault.” Reyes v. State, 274
S.W.3d 724, 727 (Tex. App.—San Antonio 2008, pet. ref’d) (citation omitted). More
than one outcry witness may testify if they each testify regarding different events.
Rosales, 548 S.W.3d at 806; see also Lopez, 343 S.W.3d at 140.
While Ida outcried out to Mother and Grandmother about Nava sexually
abusing her and generally about how long the abuse occurred, the trial court could
have concluded that Smith was the proper outcry witness for the offense because
Smith was the first adult to obtain the necessary details of the abuse to charge Nava
with the offense of continuous sexual abuse of a child. See Kappes v. State, 715
S.W.3d 414, 422 (Tex. App.—El Paso 2023, pet. ref’d); Michell v. State, 381 S.W.3d
554, 559 (Tex. App.—Eastland 2012, no pet.) (concluding the trial court did not err
in designating the forensic interviewer as the outcry witness, even though
complainant had first outcried to other individuals, because the complainant’s earlier
statements to other individuals did “not touch upon the detail required when a
defendant is charged with continuous sexual abuse of a young child or children . . .
[which includes] the time element—that the acts of sexual abuse continued for a
14
period in excess of thirty days”); see also Rosales, 548 S.W.3d at 806; Reyes, 274
S.W.3d at 727.
Nava also argues that it was error for Mother and the SANE to testify about
the same event and that this only bolstered Ida’s credibility and prejudiced the
defendant.
A review of Mother’s testimony in the guilt/innocent phase indicates that
Mother testified that on December 1, 2022, she attended a holiday party with
Grandmother and Mother’s stepdad. While at the party, Mother received a text from
Ida that indicated Nava had been touching Ida for the last two years, “since we lived
at The Abbey apartment complex, and I haven’t been able to tell you what I wanted
to tell you.” Mother described feeling shocked and let Grandmother read the
message.
Mother then read Ida’s text message that stated:
I know you’re out right now, but I have to tell you something important.
It’s been eating me up that I haven’t told you. The thing I want to tell
you is that [Nava] has been touching me since we were in that
townhouse at The Abbey apartments and he told me not to tell you, but
I have to tell you because it’s been eating me up that I haven’t told you.
I’m sorry.
Mother testified that she left the party and went home to talk to Ida for more insight
before she contacted the police. Mother stated that she did not reach out to Nava.
Mother admitted that she was very emotional, and her memory was not good after
15
she left the party. Mother recalled talking to Ida and trying to figure out what
happened, but Mother got upset and left the room to change and confront Nava. The
only detail that Mother recalled was Ida saying that Nava touched her private parts.
In this instance, Mother’s testimony detailed how she learned about Nava
sexually abusing Ida. In her testimony at trial, the only details that Mother provided
were those in the text message that she received from Ida. In the message, Ida
indicated that Nava had been touching her for the last two years. Mother was not the
outcry witness as the trial court had designated the SANE as the outcry witness.
Courts have also held that a proper outcry witness is the first adult to whom the child
tells the details of how, when, and where the sexual abuse occurred. See Reyes, 274
S.W.3d at 727; see also Rosales, 548 S.W.3d at 806. Mother did not provide those
details at trial. Additionally, Mother and the SANE did not testify about the same
event because Mother did not testify about any specific event. See Lopez, 343
S.W.3d at 140; Rosales, 548 S.W.3d at 806. We thus hold that Mother was not an
additional outcry witness and her testimony did not bolster Ida’s credibility. We
overrule issue two.
In his third issue, Nava argues the trial court erred by admitting evidence of
prior domestic violence as extraneous offenses under article 38.371. Tex. Code
Crim. Proc. Ann. art. 38.371. According to Nava, evidence of domestic violence
allowed the jury to infer that he had a propensity to sexually abuse Ida. He also
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contends that Ida did not testify that fear of domestic abuse caused her silence and
that Ida stated that the reason for her delayed outcry was that Nava had threatened
her. He further asserts that article 38.371 should not override Rule 403. Id.; Tex. R.
Evid. 403.
During a pretrial hearing, the State anticipated that Ida would testify that her
delayed outcry was based on domestic violence that she witnessed Nava commit
against Mother. The State contended that article 38.371 applied since Ida was a
member of Nava’s family, and the domestic violence was contextual evidence that
the jury could consider. The State noted that it did not intend to go into the specific
acts of violence that Ida witnessed, rather it only wanted to explain Ida’s delayed
outcry.
Nava responded that Ida never said domestic violence was why she delayed
telling anyone about the abuse, and Nava suggested that a hearing be held outside
the jury’s presence, to question Ida about the delay. Nava argued that Ida indicated
that she was afraid of him because he threatened to harm her.
The trial judge stated that it would allow the State to question Ida about what
occurred in the home and what she witnessed that contributed to her delayed
disclosure. The trial court explained that Ida could be questioned about the
relationship in the household, including domestic violence against Mother, without
going into specifics.
17
The subject of domestic violence was brought up again the next day, and the
trial judge stated, “[T]he Court in conducting the balancing test there finds that the
probative value outweighs the prejudicial effect in that it adds context. It’s
contextual to why she may or may not have delayed outcry, if she did.” The trial
court agreed to conduct a hearing outside the jury’s presence to find out what Ida’s
testimony would be since the State could only anticipate her testimony. The trial
judge explained that once Ida provided her explanation, it would give a limiting
instruction to the jury to consider it only for the limited purpose of explaining the
delayed outcry and not for any other purpose such as Nava’s character.
The State then explained that domestic violence in the home could come in
through the testimony of other witnesses. According to the State, Ida referenced
abuse in the home in the SANE examination, and though it redacted references to
specific instances out of the SANE record, the reference to abuse in the home
remained.
The trial judge explained that she did not anticipate conducting a hearing
outside the jury’s presence with every witness, and the information would have come
in through other witnesses before Ida testified. The judge then found that the
evidence was more probative than prejudicial and would be permitted.
The State noted that Mother would also testify about the nature of her
relationship with Nava, that the relationship generally was bad, and there was abuse
18
in the home that Ida witnessed. Nava again objected to the testimony and argued its
prejudicial effect outweighed any probative value. The trial court overruled Nava’s
objection as to the admissibility of the testimony and the probative value being
outweighed by the prejudicial effect.
During trial, Mother testified that after learning that Nava abused Ida, Mother
went to Nava’s apartment, in the same complex, with a baseball bat to confront him.
Mother stated that the police were called and arrested her. Mother explained that she
informed the police about Ida’s allegations of abuse. She was angry because Nava
was not handcuffed, and Nava had “done things like this to me my entire -- our entire
relationship.” At that point, the attorneys approached the bench, and the State was
instructed to steer Mother away from any specifics.
Mother then testified that her relationship with Nava was tumultuous and they
fought often. Mother stated that her relationship with Nava was abusive, and all the
children witnessed the abuse at different times. Mother indicated that a significant
fight prompted her to leave California and move to Texas where her mother lived.
Later, Nava objected to Mother’s testimony that Nava had “done things like
this” and argued the comment went beyond the general discussion of domestic
violence and moved for a mistrial. The trial judge stated that the State rephrased the
questions to not elicit anything specific and denied the motion for mistrial.
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The SANE testified that Ida told her that Mother was married to Nava for
eight years, that Ida did not feel safe when Nava was around, and Nava was abusive.
Ida testified that she was scared to tell Mother about the abuse because Nava
would hurt Mother like she had seen happen before. Ida indicated that she witnessed
things happen between Mother and Nava that scared her.
Under Rule 403, relevant evidence may be excluded if “its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence.” Tex. R. Evid. 403. Analysis under Rule 403 must
balance (1) the inherent probative force of the evidence along with (2) the
proponent’s need for it against (3) any tendency of the evidence to suggest a decision
on an improper basis, (4) any tendency of the evidence to confuse or distract the jury
from the main issues, (5) any tendency of the evidence to be given undue weight by
a jury that has not been equipped to evaluate the probative force of the evidence, and
(6) the likelihood that presentation of the evidence will consume any inordinate
amount of time or merely repeat evidence already admitted. Gigliobianco v. State,
210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).
Here, the trial court limited any discussion of violence in the home or
witnessed by Ida by permitting Mother and Ida to only discuss any incidents in
general. The jury did not hear any testimony regarding a specific incident of violence
20
between Nava and Mother. The trial court also permitted a limiting instruction in the
jury charge regarding how the jury could consider any crimes, wrongs, or acts of
Nava.
The trial court could have reasonably concluded that the probative value of
the evidence was significant, and that the State’s need for it was compelling. The
evidence about Nava’s violence against Mother was probative of whether Ida was
sexually abused and it explained her fear of Nava, which was the reason she delayed
in reporting him. In cases like this, wherein the victim is the only eyewitness, the
evidence of violence in the home made her outcry more credible. Since the trial court
limited any discussion of violence to a general nature, it did not take an inordinate
amount of time to develop as only Mother and Ida mentioned the violence briefly.
Therefore, given the nature of the case and limiting instruction to prevent the
jury from considering the evidence on an improper basis, any confusion or tendency
for the jury to give the evidence undue weight was limited. Absent evidence to the
contrary, we presume that juries follow the jury charge instructions. See Colburn v.
State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (en banc). We hold the trial
court did not abuse its discretion by admitting evidence of domestic violence in the
home, as it could have reasonably determined that the evidence’s probative value in
explaining Ida’s delayed outcry was not substantially outweighed by its prejudicial
21
impact. See Tex. R. Evid. 403; Montgomery, 810 S.W.2d at 391. We overrule issue
three.
In his fourth issue, Nava challenges the trial court’s limit on his crossexamination of Ida. According to Nava, Ida failed to mention to the interviewer that
Nava performed oral sex on her though she alleged oral contact at trial. Nava
contends that he wanted to play a portion of Ida’s recorded interview to prove she
did not mention oral contact with the interviewer, but the trial court expressed
concern over how long it would take to find the segment. He argues that the trial
court ultimately did not allow the interview to be played, and this effectively limited
the scope of cross-examination and denied the jury the opportunity to hear whether
Ida previously mentioned oral contact. Nava argues that this violated the
Confrontation Clause and deprived the jury of crucial credibility evidence.
The record reflects that at trial Nava questioned Ida about the medical exam
record that indicated that she responded “no” to the question of whether Nava’s
mouth ever went to her private part. After the State’s objection of improper
impeachment, Nava showed Ida the record and she acknowledged that she saw
where it reflected that she responded “no.” Nava’s counsel then questioned Ida about
meeting with the forensic interviewer, and Ida indicated that she did. At that point,
the State objected to improper impeachment, and the trial judge sustained the
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objection. Nava’s counsel then asked Ida if she told the officer or interviewer that
Nava touched her vagina with his mouth, to which Ida stated that she was not sure.
At that point, the attorney approached the bench to discuss refreshing Ida’s
memory with the video of the interview. To be clear, Nava’s counsel asked Ida if
seeing the interview would refresh her memory and Ida again stated that she was not
sure but then acknowledged that seeing and hearing the video would refresh her
memory.
Counsels for the State and Nava again discussed reviewing the video and/or
transcript to refresh Ida’s memory, and they decided that a transcript would be used.
However, before refreshing Ida’s memory, the State stipulated that Ida failed to
disclose to the forensic interviewer that Nava’s mouth made contact with her vagina,
and she did not disclose any bleeding as she suggested in the SANE exam. Nava’s
counsel responded, “Well, I’m okay with that. I’m okay with that.”
When trial resumed, the State stipulated, in front of the jury, that Ida did not
disclose mouth to vagina contact and the trial court then instructed the jury that the
stipulation was admitted into evidence and it is to be considered as testimony.
To preserve error for appellate review, the record must show that a complaint
was timely made to the trial court, the grounds were specifically stated or apparent,
the complaint complied with the rules of evidence or procedure, and the trial court
ruled on the complaint. See Tex. R. App. P. 33.1(a). Here, Nava complained about
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Ida’s recent disclosure of mouth to vagina contact, but once the State indicated that
it would stipulate that mouth to vagina contact was not disclosed, Nava agreed to the
stipulation without objection. Nava also failed to object when the trial court
instructed the jury that the stipulation was admitted and was to be considered
testimony. We thus hold that Nava failed to preserve his complaint for appellate
review and any error that might have occurred was waived. See id. We overrule issue
four.
Issue Five: Jury Instructions
In his final issue, Nava argues that the trial court erred when it failed to instruct
the jury regarding lesser included offenses such as aggravated sexual assault of a
child or indecency with a child. He argues that an instruction on a lesser included
offense must be given if there is some evidence that would permit a jury rationally
to find the defendant guilty of only the lesser offense. He contends the evidence
presented supported a lesser finding and without the lesser finding in the charge, the
jury likely felt compelled to either convict him of continuous abuse or let a guilty
defendant go free. He asserts that denying the lesser included instruction prejudiced
him and removed a legitimate middle-ground verdict.
We review a trial court’s refusal to submit a lesser included offense instruction
for an abuse of discretion. See Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim.
App. 2004). Generally, there is a two-step procedure to determine whether a
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defendant is entitled to an instruction on a lesser included offense. Chavez v. State,
666 S.W.3d 772, 776 (Tex. Crim. App. 2023). “First, we compare the statutory
elements of the alleged lesser offense with the statutory elements of the greater
offense and any descriptive averments in the indictment.” Id. (citing Safian v. State,
543 S.W.3d 216, 220 (Tex. Crim. App. 2018)). That step is satisfied if the lesser
offense is included within the proof of the greater offense. Id.; Tex. Code Crim. Proc.
Ann. art. 37.09(1). “Second, there must be evidence from which a rational jury could
find the defendant guilty of only the lesser offense.” Chavez, 666 S.W.3d at 776
(citing Guzman v. State, 188 S.W.3d 185, 188–89 (Tex. Crim. App. 2006). “It is the
exclusive responsibility of the trial court to determine as a matter of law whether an
offense is properly considered a lesser included offense of the indicted offense under
article 37.09 of the Texas Code of Criminal Procedure. See Hall v. State, 225 S.W.3d
524, 535–36 (Tex. Crim. App. 2007) (explaining that this determination is a question
of law).
Article 37.09 of the Texas Code of Criminal Procedure provides as follows:
An offense is a lesser included offense if:
(1) it is established by proof of the same or less than all the facts
required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less
serious injury or risk of injury to the same person, property, or public
interest suffices to establish its commission;
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(3) it differs from the offense charged only in the respect that a less
culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an
otherwise included offense.
Tex. Code Crim. Proc. Ann. art. 37.09.
To establish continuous sexual abuse of a child, the State must prove three
elements: (1) the defendant “commit[ted] two or more acts of sexual abuse,” (2)
“during a period that is thirty or more days in duration,” and (3) “at the time of the
commission of each of the acts of sexual abuse, the [defendant was] seventeen years
of age or older and the victim [was] a child younger than fourteen years of age.”
Tex. Penal Code Ann. § 21.02(b). The inclusion of indecency with a child and
aggravated sexual assault as an “act of sexual abuse” indicates that both are lesser
included offenses. See id.; Price v. State, 434 S.W.3d 601, 606 (Tex. Crim. App.
2014); Soliz v. State, 353 S.W.3d 850, 854 (Tex. Crim. App. 2011). However, Nava
had the burden to demonstrate there was “evidence from which a rational jury could
find the defendant guilty of only the lesser offense.” Chavez, 666 S.W.3d at 776.
Although the exact dates of abuse need not be proven, the offense of
continuous sexual abuse of a child requires proof that there were two or more acts
of sexual abuse that occurred during a period that was thirty or more days in duration.
See Tex. Penal Code Ann. § 21.02(d) (requiring a jury to unanimously agree that the
defendant committed two or more acts of sexual abuse during a period that is thirty
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or more days). Additionally, “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.” Id.
The evidence reflected that Nava started sexually abusing Ida when she
moved to The Abbey complex around June 2020. Ida stated that she and her family
moved into a townhome in The Abbey complex in November 2020, and that is where
she recalled Nava first abusing her. Ida explained that Nava began to touch her thigh
and butt while watching a movie. While living in the townhome, Ida stated that Nava
also touched her vagina with his hands under her clothes. She testified that Nava
touched her approximately fifty times in the townhome.
Ida testified that she lived at The Retreat 318 apartment complex and Nava
continued touching her frequently and started putting his penis on her vagina while
unclothed. She stated that Nava put his penis on her vagina approximately ten times.
Ida indicated that during this time, Nava also put his finger insider her vagina
approximately five times. She testified that Nava made her put her hand on his penis
on more than one occasion.
The State also provided evidence of Mother’s lease agreements and indicated
that the family lived at The Retreat from July 2022 through August 2023.
Having reviewed the entire record, we hold nothing in the record suggests that
would permit a jury rationally to find that, if appellant is guilty, he is guilty only of
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a lesser included offense. On this record, the lesser included offenses are not valid
or rational alternatives to the charge against Nava. See Hall, 225 S.W.3d at 535–36;
see also Chavez, 666 S.W.3d at 776. Since we do not find error, we need not consider
harm. We overrule issue five.
Conclusion
Having overruled all Nava’s issues, we affirm the trial court’s judgment.
AFFIRMED.
W. SCOTT GOLEMON
Chief Justice
Submitted on June 4, 2026
Opinion Delivered October 14, 2026
Do Not Publish
Before Golemon, C.J., Johnson and Wright, JJ.
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