govinfo:USCOURTS-txed-5_24-cv-00015-0

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IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF TEXAS 
TEXARKANA DIVISION 
§ 
QUARTSHEZZ LEWIS § 
§ 
Petitioner § 
§ 
v. § Case No. 5:24cv15-JRG-KMN 
§ 
DIRECTOR, TDCJ-CID § 
§ 
Respondent § 
§ 
 
ORDER OF DISMISSAL 
Petitioner Quartshezz Lewis, proceeding pro se, filed the above-styled and numbered petition 
for the writ of habeas corpus challenging the legality of his conviction. The case was referred to the 
United States Magistrate Judge in accordance with 28 U.S.C. § 636. 
I. Background 
Petitioner was convicted at trial of continuous sexual assault of a child, receiving a sentence 
of 60 years in prison. On direct appeal, he asserted that there was no evidence that at least two acts 
of sexual assault occurred over more than a 30 day period as required for the offense of continuous 
sexual assault of a child, and that the application portion of the guilt -innocence charge did not 
require that two acts take place over at least a 30 day period. The intermediate appellate court 
determined that there was evidence of an act of sexual assault in February of 2014 and another one 
in April of 2014, which was sufficient evidence for the jury to find that Petitioner sexually abused 
the victim, A.B., on at least two occasions which occurred more than 30 days apart. Lewis v. State, 
slip op. no. 06-21-00021-CR, 2022 Tex. App. LEXIS 1536, 2022 WL 630288 (Tex.App-Texarkana, 
March 4, 2022, pet. ref’d), cert. denied, 143 S.Ct 740 (2023). 
With regard to the second claim, the appellate court determined that the jury charge did in 
fact contain error, in that it allowed for a conviction if two or more acts of sexual abuse occurred 
during a specific period which was longer than 30 days, regardless of whether the acts themselves 
occurred at least 30 days apart. However, no objection was lodged to the erroneous charge, meaning PageID #: 
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that under Texas law, reversal was required only if the charge error was so egregious and created 
such harm that a review of the record of the entire trial reveals that the defendant did not have a fair 
and impartial trial. Upon such review, the court determined that Petitioner failed to make such a 
showing. He sought discretionary review from the Texas Court of Criminal Appeals, which refused 
it without a written opinion. Petitioner then sought state habeas relief, which was denied by the 
Court of Criminal Appeals on the findings of the trial court and an independent review of the record. 
Ex Parte Lewis, WR-95,134-01 (Tex.Crim.App., November 1, 2023) (Dkt. No. 8-17, p. 1) . 
II. The Federal Habeas Petition 
Petitioner raises two grounds for relief in his federal habeas petition: (1) the appellate court 
erred in failing to rule that there was a material variance between the allegations of the indictment 
and the testimony at trial, and (2) the appellate court erred in finding the jury charge error harmless 
if the charge relieved the State of its burden of proof beyond a reasonable doubt as to the elements 
which must be proven to constitute the crime. In a response to the State’s answer, which argued that 
Petitioner failed to show that the state courts’ rejection of his claims was unreasonable, Petitioner 
maintained that there were variances in the indictment because while the indictment set out a start 
date of May 15, 2013, the evidence at trial showed that the first alleged incident of abuse occurred 
in February of 2014. He asserted that the indictment alleged dates of May of 2013 to September of 
2014, but the opinion of the Court of Appeals gave dates of February and April of 2014. 
Petitioner also contended that a jury instruction which omits or materially mis-describes an 
essential element of an offense relieves the State of its obligation to prove facts constituting every 
element of the offense beyond a reasonable doubt. He stated that the Court of Appeals determined 
the application paragraph contained error because it confused the statutorily required thirty- day 
period for continuous sexual abuse with the “on or about” periods alleged with respect to 
commission of the predicate offense, and explains that according to the court, the jury could have 
read the charge as instructing a finding of guilt if there was 30 or more days between the dates of 
the indictment - May 2013 to September 2014 - and during that time, Petitioner abused A.B. on two PageID #: 
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or more occasions. Petitioner argues that this is not in conformity with the statute because it did not 
say that the incidents of abuse themselves had to be at least 30 days apart. 
III. The Report of the Magistrate Judge 
After review of the pleadings, the Magistrate Judge issued a Report recommending that the 
petition for habeas corpus relief be denied. With regard to Petitioner’s first claim, the Magistrate 
Judge explained that under Texas law, a variance occurs when there is a discrepancy between the 
allegations in the indictment and the proof presented at trial. This means that the State has proven 
the defendant guilty of a crime but has proven its commission in a manner which varies from the 
allegations in the indictment. Such a variance may render the evidence insufficient to sustain the 
conviction, but only if the variance is material and prejudices the defendant’s substantial rights in 
other words, if the indictment as written fails to inform the defendant of the charge against him 
sufficiently to prepare an adequate defense at trial and subjects him to the risk of being prosecuted 
later for the same crime. 
As applied to the present case, the Magistrate Judge observed that under Texas law, the State 
is not required to prove specific dates alleged in the indictment unless time is a material element of 
the offense. Instead, the time mentioned must be “some date anterior to the presentment of the 
indictment and not so remote that the prosecution of the offense is barred by limitations.” Tex. Code 
Crim. Pro. art. 21.02. The continuous sexual abuse statute, Tex. Penal Code art. 21.02, provides that 
a person commits an offense if, during a period of time that is 30 or more days in duration, the 
person commits two or more acts of sexual abuse; the jurors are not required to agree unanimously 
on which specific acts of sexual abuse were committed by the defendant or the exact date those acts 
were committed, but must agree unanimously that the defendant committed two or more acts of 
sexual abuse during a period that is 30 days or more in duration. 
In the present case, the Magistrate Judge determined that the State offered evidence of abuse 
occurring in February and April of 2014, at a time when Petitioner was 17 years of age or older and 
A.B. was younger than 14; thus, the State met the elements of the offense. The Magistrate Judge 
rejected Petitioner’s assertion that the alleged variance was material because the State was not PageID #: 
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required to prove the exact dates alleged in the indictment - thus, the State did not have to show acts 
of abuse occurring in May of 2013 or September of 2014, or that the abuse covered this entire 
period. The Magistrate Judge went on to state that to the extent Petitioner challenged the indictment 
itself, his claim lacked merit because federal habeas corpus relief based on a challenge to a state 
indictment is precluded unless the indictment is so defective as to deprive the convicting court of 
jurisdiction, and in denying relief, the Texas Court of Criminal Appeals necessarily found that the 
indictment vested the court with jurisdiction. Likewise, the Magistrate Judge rejected Petitioner’s 
claim to the sufficiency of the evidence through the alleged variance, observing that A.B. testified 
to an incident of abuse occurring in February of 2014 and there was also evidence of an incident 
occurring around Easter of 2014, which fell in April. Thus, the Magistrate Judge stated that when 
viewed in the light most favorable to the prosecution, a rational trier of fact could have found the 
essential elements of the crime beyond a reasonable doubt. 
In his second ground for relief, Petitioner complained that the error in the jury charge had 
the effect of relieving the State of its burden of proof. He pointed to the finding of error made by 
the appellate court and posed the question of whether the court erred in finding this error harmless. 
The Magistrate Judge stated that as a general rule, improper jury instructions in state criminal 
cases are not a basis for federal habeas relief. The question for the federal habeas court is whether 
the erroneous instruction by itself so infected the entire trial that the resulting conviction violated 
due process. In this case, the Magistrate Judge determined that while there may have been an error 
in the instructions, this error did not so infect Petitioner’s entire trial. The jury was specifically told 
in closing arguments that the alleged incidents of abuse had to have occurred over a period of 30 
days or more, and the evidence presented at trial showed incidents occurring in February and April, 
a period of over 30 days. 
In addition, the Magistrate Judge observed that in order to be granted a writ of habeas corpus 
in federal court, a petitioner must show that the state court's adjudication of his claim resulted in a 
decision which was contrary to or involved an unreasonable application of clearly established 
federal law, as determined by the Supreme Court, or resulted in a decision based on an unreasonable PageID #: 
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determination of the facts in light of the evidence presented in the state court proceeding. The 
federal habeas court cannot issue the writ simply because the court concludes in its independent 
judgment that the relevant state-court decision applied clearly established federal law erroneously 
or incorrectly; rather, the decision must be “objectively unreasonable,” a standard which creates a 
substantially higher threshold for obtaining relief than de novo review. 
In reviewing Petitioner’s claims under this standard, the Magistrate Judge concluded that 
Petitioner failed to show that the state court’s decision amounted to an objectively unreasonable 
resolution of his claim. The Magistrate Judge explained that Petitioner must show that the state 
court's ruling on the claim being presented in federal court was so lacking in justification that there 
was an error well understood and comprehended in existing law beyond any possibility for fair -
minded disagreement and the state court’s determination that a claim lacks merit precludes federal 
habeas relief so long as fair -minded jurists could disagree on the correctness of the state court’s 
decision, citing Druery v. Thaler, 647 F.3d 535, 539 (5th Cir. 2011), and Harrington v. Richter, 562 
U.S. 86, 101 (2011). Thus, the Magistrate Judge recommended that the petition for habeas corpus 
relief be dismissed. 
IV. Petitioner’s Objections to the Report 
In his objections, Petitioner argues that although the indictment says May 15, 2013, there 
was no evidence of any acts prior to February of 2014. He contends that the May 2013 date is 
“descriptive of that which is legally essential to charge the crime,” citing Gollihar v. State , 46 
S.W.3d 243, 246 (Tex.Crim.App. 2001). In that case, the indictment and the jury charge alleged 
that the appellant stole a go-cart with the model number of 136202, but the evidence showed that 
the model number was 136203. The Sixth Judicial District Court of Appeals held that this was a 
material variance and ordered an acquittal, but the Court of Criminal Appeals reversed, determined 
that this variance was immaterial and thus did not require overturning the conviction. This case does 
not assist petitioner; the Texas Court of Criminal Appeals has held that the State is not required to 
prove the specific dates alleged in the indictment. Sledge v. State , 953 S.W.2d 253, 255 
(Tex.Crim.App. 1997) (en banc). PageID #: 
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As the Magistrate Judge explained, Texas law provides that unless time is a material element 
of an offense, the indictment is not required to specify the precise date that an offense occurred, nor 
a window of time within which the offense must have occurred, in order to satisfy constitutional 
notice requirements. Tex. Penal Code § 1.07(a); Garcia v. State , 981 S.W.2d 683, 685- 86 
(Tex.Crim.App. 1998). In the context of a conviction for continuous sexual abuse of a child, the 
Texas courts have held that the State is not required to prove that the offenses occurred on the exact 
dates alleged because they occurred before the indictment and after the limitations period. 
Magdaleno-Garcia v. State , slip op. no. 07- 24-00166-CR, 2026 Tex.App. LEXIS 2399 at *4–5, 
2026 WL 745280 (Tex.App.-Amarillo, March 16, 2026, no pet.), citing Mireles v. State, 901 S.W.2d 
458, 459 (Tex.Crim.App. 1995) (en banc). The fact that the State’s proof in the present case showed 
an offense date of February of 2014 rather than the date of May 2013 set out in the indictment does 
not show a basis for granting federal habeas corpus relief. Petitioner’s objection on this point is 
without merit. 
Petitioner’s second objection argues that the jury charge served to relieve the State of its 
burden of proof, and so renders his conviction a violation of due process. The Fifth Circuit has held 
that in reviewing claims of jury charge error, the federal habeas court must ask “whether there is a 
reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the 
consideration of constitutionally relevant evidence.” Sprouse v. Stephens, 748 F.3d 609, 618 (5th 
Cir. 2014), citing Boyde v. California, 494 U.S. 370, 380, (1990). The court went on to explain that 
two observations underpin that standard: (1) jurors do not sit in solitary isolation booths parsing 
instructions for subtle shades of meaning in the same way that lawyers might, and (2) differences 
among jurors in interpretation of instructions may be thrashed out in the deliberative process, with 
commonsense understanding of the instructions in the light of all that has taken place at the trial 
likely to prevail over technical hairsplitting. Id. at 618-19, citing Boyde, 494 U.S. at 378. The court 
additionally observed that a single instruction to the jury is not judged in artificial isolation, but is 
viewed in the context of the overall charge. Id. PageID #: 
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In this case, as the Magistrate Judge observed, the state court held that Petitioner did not 
suffer egregious harm as a result of the error in the instruction. The jury was specifically told in 
closing arguments that the alleged incidents of abuse had to have occurred over a period of 30 days 
or more, and the evidence presented at trial showed incidents occurring in February and April, a 
period of over 30 days. In order to prevail on federal habeas corpus, the Magistrate Judge stated that 
the petitioner must show that the state court’s adjudication of his claim resulted in a decision which 
was contrary to or involved an unreasonable application of clearly established federal law, as 
determined by the Supreme Court, or resulted in a decision based on an unreasonable determination 
of the facts in light of the evidence presented in the state court proceeding. Moore v. Cockrell, 313 
F.3d 880, 881 (5th Cir. 2002). This means that the petitioner must show that the state court’s ruling 
on the claim being presented in federal court was so lacking in justification that there was an error 
well understood and comprehended in existing law beyond any possibility for fair -minded 
disagreement. Druery v. Thaler, 647 F.3d 535, 539 (5th Cir. 2011). This standard is very high and 
difficult to meet, as the Supreme Court said it was meant to be. Harrington v. Richter, 562 U.S. 86, 
101 (2011). 
Petitioner’s objections fail to show that the state court’s ruling on his claim that no egregious 
error occurred was contrary to or involved an unreasonable application of clearly established federal 
law or resulted in a decision based on an unreasonable determination of the facts in light of the 
evidence presented in the state court proceeding. He simply argues that the jury charge as written 
did not require that two acts of sexual abuse occur over at least a 30 day period, but offers nothing 
to suggest that this amounted to egregious error under state law - contrary to what the state court 
found - or that there was a reasonable likelihood that the jury applied the challenged instruction in 
a way that prevents the consideration of constitutionally relevant evidence, nor that the error was 
such as to render Petitioner’s conviction a violation of due process. His objections are without 
merit. PageID #: 
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V. Conclusion 
The Court has conducted a careful de novo review of those portions of the Magistrate Judge’s 
proposed findings and recommendations to which the Plaintiff objected. See 28 U.S.C. § 636(b)(1) 
(District Judge shall “make a de novo determination of those portions of the report or specified 
proposed findings or recommendations to which objection is made.”) Upon such de novo review, 
the Court has determined that the Report of the Magistrate Judge is correct and the Plaintiff’s 
objections are without merit. It is accordingly 
ORDERED that the Report of the Magistrate Judge (Dkt. No. 12) is ADOPTED as the 
opinion of the District Court. It is further 
ORDERED that the above-styled petition for the writ of habeas corpus is DISMISSED 
WITH PREJUDICE. It is further ORDERED that a certificate of appealability is denied sua 
sponte. 
 
.
____________________________________
RODNEY GILSTRAP
UNITED STATES DISTRICT JUDGE
So ORDERED and SIGNED this 15th day of June, 2026. PageID #: 
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