             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-17-00392-CR
      ___________________________

RAYMOND WEBSTER MYERS, Appellant

                     V.

          THE STATE OF TEXAS


   On Appeal from the 271st District Court
            Wise County, Texas
         Trial Court No. CR19183


Before Sudderth, C.J.; Pittman and Womack, JJ.
  Memorandum Opinion by Justice Pittman
                          MEMORANDUM OPINION

                                  INTRODUCTION

      A jury convicted Appellant Raymond Webster Myers of continuous sexual

abuse of a child, and the trial court sentenced him to twenty-five years’ confinement.

In the indictment, Count I charged Appellant with committing continuous sexual

abuse of a child by committing two or more acts of indecency with a child by

touching her genitals.   See Tex. Penal Code Ann. § 21.02(a)–(b), (c)(2), (d), (h).

Appellant was also indicted on two counts of indecency with a child by contact. See

id. § 21.11(a)(1), (c). The count involving the same complainant as Count I alleged

that Appellant touched her breast (Count II), and the remaining count alleged that he

touched a second child’s genitals (Count III). See id. The State abandoned both of

the indecency-with-a-child-by-contact counts. 1

      In one issue, Appellant contends that the trial court erroneously defined “acts

of sexual abuse” and “sexual contact” in the jury charge so as to authorize the jury to

convict him of continuous sexual abuse of a child based on his alleged touching of the

complainant’s breast, even though the continuous-sexual-abuse-of-a-child statute

specifically excludes that type of sexual contact (and that type of indecency with a




      1
       We therefore refer to the complainant in the only live count, Count I, when
we use that term.


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child by contact) as an element. See id. § 21.02(c)(2). Because we hold that the

unpreserved error did not cause egregious harm, we affirm the trial court’s judgment.2

                                     DISCUSSION

I.    The Trial Court Erred by Including Breast-Touching in the Definitions
      in the Abstract Portion of the Jury Charge.

      We must review “all alleged jury-charge error . . . regardless of preservation in

the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In

reviewing a jury charge, we first determine whether error occurred; if not, our analysis

ends. Id.

      Touching a child’s breast, including touching through clothing, does not qualify

as an “act of sexual abuse” under the continuous-sexual-abuse-of-a-child statute. See

Tex. Penal Code Ann. § 21.02(c)(2). We therefore agree with the parties that the trial

court erred in the abstract portion of the charge (1) by not carving out indecency with

a child by touching her breast from the definition of “[a]ct of sexual abuse” and (2) by

including breast-touching in the definition of “[s]exual contact.” However, Appellant

did not object to the jury charge.

II.   We Decide Whether Unpreserved Error in the Jury Charge Causes
      Egregious Harm.

      Unpreserved charge error warrants reversal only when the error resulted in

egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013); Almanza

      2
       Appellant does not challenge the sufficiency of the evidence to support his
conviction; we therefore omit a summary of facts.


                                           3
v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see Tex. Code

Crim. Proc. Ann. art. 36.19. The appropriate inquiry for egregious harm is fact- and

case-specific. Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013); Taylor v.

State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).

       In making an egregious-harm determination, we must consider “the actual

degree of harm . . . in light of the entire jury charge, the state of the evidence,

including the contested issues and weight of probative evidence, the argument of

counsel and any other relevant information revealed by the record of the trial as a

whole.” Almanza, 686 S.W.2d at 171. See generally Gelinas, 398 S.W.3d at 708–

10 (applying Almanza). Errors that result in egregious harm are those “that affect the

very basis of the case, deprive the defendant of a valuable right, vitally affect the

defensive theory, or make a case for conviction clearly and significantly more

persuasive.” Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at 172). The

purpose of this review is to illuminate the actual, not just theoretical, harm to the

accused. Almanza, 686 S.W.2d at 174.

III.   The Harm Caused by This Error Was Not Egregious.

       The State argues that the harm was not egregious. We agree.

       A.    The Entire Jury Charge Weighs Against an Egregious-Harm
             Finding.

       On one hand, the errors in the abstract portion of the charge discussed above

are exacerbated by related statements in that portion. The trial court instructed the



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jury that it did not have “to agree unanimously on which specific acts of sexual abuse

were committed.” On the other hand, the indictment is mentioned multiple times in

the abstract portion of the charge, and the indictment charged Appellant with

committing continuous sexual abuse of a child by touching the complainant’s genitals.

Significantly, the application portion of the jury charge tracks Count I of the

indictment correctly, properly limiting the jury to considering only Appellant’s alleged

acts of indecency of a child based on his touching the complainant’s genitals. See

Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012) (explaining that the

application paragraph, not the abstract paragraph, authorizes a conviction); cf.

Yzaguirre v. State, 394 S.W.3d 526, 530 (Tex. Crim. App. 2013) (noting in dicta that

“[w]e look at the wording of the application paragraph to determine whether the jury

was correctly instructed in accordance with the indictment and also what the jury

likely relied upon in arriving at its verdict, which can help resolve a harm analysis”)

(citations omitted). The application portion of the charge mitigates the harm caused

by the error complained of. Overall, this factor weighs against finding egregious

harm. See Smith v. State, 397 S.W.3d 765, 771 (Tex. App.—San Antonio 2013, no pet.)

(concluding no egregious harm when application paragraph correctly stated the law

regarding continuous sexual abuse of a child).

      B.     The Evidence Weighs Against an Egregious-Harm Finding.

      We look at the state of the evidence to determine whether the evidence made it

more or less likely that the jury-charge error egregiously harmed Appellant. See

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Arrington v. State, 451 S.W.3d 834, 841 (Tex. Crim. App. 2015). Appellant does not

raise a sufficiency complaint on appeal. Considering the entire record, the evidence

sufficiently supports Appellant’s guilt of continuous sexual abuse of a child based on

his touching the complainant’s genitals on multiple occasions. The complainant

testified that Appellant touched and rubbed her breasts and genitals on many

occasions, beginning when she was around eight years old and ending just before her

twelfth birthday. The complainant’s mother testified that the complainant told her

that Appellant had touched her in her “private areas” under her clothes on “multiple”

occasions when she was asleep. The sexual assault nurse examiner (SANE) testified

that the complainant told her Appellant “started touching [her] private parts when

[she] went to [her] Grammy’s house”; “[h]e touched [her] private parts and up here—

and she pointed to her breasts—and he would rub [her;] and he did it a lot.”

      The SANE also testified that:

         • The complainant used “private parts” to identify her “vaginal
           area”;

         • The complainant indicated that Appellant had touched her vaginal
           area with his fingers or hand, had masturbated her within her
           labia, and had fondled her breasts and genitals;

         • The complainant believed the sexual abuse began when she was
           eight or nine years old and had last occurred in March before the
           April 2016 examination; and

         • The complainant was twelve years old at the SANE examination.




                                          6
       Other evidence included culpable statements that Appellant made to his adult

daughter and texts he sent his wife from which his culpability could be inferred, but

none of those were specifically incriminatory regarding the touching of the

complainant’s genitals as opposed to her breasts. On the other hand, there was no

evidence that Appellant touched only the complainant’s breasts.           Instead, the

defensive theory was that he had not touched the complainant inappropriately at all.

The jury necessarily found the complainant credible and rejected the defensive theory.

       This factor weighs against finding egregious harm. See Arrington, 451 S.W.3d at

844.

       C.    The Parties’ Arguments Weigh Against a Finding of Egregious
             Harm.

       For this factor, we address whether any statement made by the parties or the

trial court during trial increased or decreased the effect of the error. Id. The State

mentioned breasts once in its opening statement. In examining witnesses, the State

mentioned breasts once in questioning Appellant’s daughter and twice in questioning

the complainant after she had already testified that Appellant had touched both her

genitals and her breasts.     Only defense counsel mentioned breasts in closing

arguments, and it was just once.      Neither side clarified that the breast-touching

allegations could not contribute to a finding of guilt in its closing argument. But the

State did direct the jury to focus on the application paragraph, which properly tracks

the indictment relying on genital contact. Given the mixed results, we conclude that



                                          7
this factor is neutral. See de la Luz Torres v. State, 570 S.W.3d 874, 883 (Tex. App.—

Houston [1st Dist.] 2018, pet. ref’d).

      D.     Neither Party Points to Other Relevant Information.
      The parties focus on the jury charge, the evidence, and the arguments of

counsel.   Neither points to other categories.       We note that other courts have

considered the jury’s rejection of a charged count and whether the jury asked for

clarification during deliberations. See Flores v. State, 513 S.W.3d 146, 161 (Tex. App.—

Houston [14th Dist.] 2016, pet. ref’d). The jury here did send a note, but it only asked

for a transcript. Further, only one count was submitted to the jury, and it convicted

Appellant of that count. This factor is neutral. See de la Luz Torres, 570 S.W.3d at 883.

      E.     The Factors Identified in Almanza Weigh Against Finding
             Egregious Harm.

      No factor weighs in favor of an egregious-harm finding, two factors are neutral,

and two factors militate against an egregious-harm finding. We therefore cannot say

that the trial court’s errors in the abstract portion of the jury charge “affect[ed] the

very basis of the case, deprive[d Appellant] of a valuable right, vitally affect[ed] the

defensive theory, or ma[d]e a case for conviction clearly and significantly more

persuasive.” Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at 172). We

overrule Appellant’s sole issue.

                                   CONCLUSION

      Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.



                                            8
                              /s/ Mark T. Pittman
                              Mark T. Pittman
                              Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: May 23, 2019




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