                                                                       PD-0258-15
                                                      COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                    Transmitted 4/15/2015 3:21:49 PM
                                                     Accepted 4/16/2015 12:07:13 PM
                                                                        ABEL ACOSTA
                CAUSE NUMBER PD-0258-15                                         CLERK




              IN THE COURT OF CRIMINAL
                  APPEALS OF TEXAS


                 CHARLES LEE HODGES,
                                              Petitioner,
                             vs.

                  THE STATE OF TEXAS,
                                              Respondent.



SEEKING REVIEW OF THE ELEVENTH COURT OF APPEALS’ JUDGMENT AND
             OPINION IN CAUSE NUMBER 02-13-00073-CR



    SECOND CORRECTED PETITION FOR
        DISCRETIONARY REVIEW
                                   WM. REAGAN WYNN
                                   SBN: 00797708

                                   KEARNEY | WYNN
        April 16, 2015             ONE MUSEUM PLACE
                                   3100 WEST 7TH STREET, SUITE 420
                                   FORT WORTH, TEXAS 76107
                                   (817) 336-5600
                                   (817) 336-5610 (fax)
                                   rwynn@kearneywynn.com

ORAL ARGUMENT IS REQUESTED         ATTORNEY FOR PETITIONER
                 IDENTITY OF JUDGE, PARTIES, AND COUNSEL

The trial court judge:     Hon. Everett Young, Judge Presiding of the 297th Judicial
                           District Court

The parties to the trial   Charles Lee Hodges                       Defendant
court’s judgment are:
                           The State of Texas                       Prosecution

Trial counsel were:        Hon. Samuel W. Pettigrew, Jr.            Defense Counsel
                           840 S. Carrier Parkway
                           Grand Prairie, Texas 75051

                           Hon. Lisa A. Callaghan                   Prosecutor
                           Hon. Dawn N. Ferguson                    Prosecutor

                           Tarrant County District Attorney’s Office
                           401 West Belknap
                           Fort Worth, Texas 76196
                           (817) 884-1400

Appellate counsel are:     Wm. Reagan Wynn                          Appellant/Petitioner
                           Kearney | Wynn
                           One Museum Place
                           3100 West 7th Street, Suite 420
                           Fort Worth, Texas 76107
                           (817) 336-5600
                           (817) 336-5610 (fax)

                           Hon. Edward L. Wilkinson                 State of Texas

                           Tarrant County District Attorney’s Office
                           Appellate Section
                           Address above




                                             i                                                   HODGES v. STATE
                                                             SECOND CORRECTED PETITION FOR DISCRETIONARY REVIEW
                                          TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES, AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . i

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

QUESTION PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

REASONS FOR REVIEW, ARGUMENTS, AND AUTHORITIES . . . . . . . . . . . . . . 2

         I.       THE COURT OF APPEALS ERRED BY APPLYING THE ARTICLE
                  36.19/ALMANZA EGREGIOUS HARM STANDARD RATHER THAN
                  THE CONSTITUTIONAL ERROR RULE 44.2(a) HARMLESS
                  BEYOND A REASONABLE DOUBT STANDARD TO THE TRIAL
                  COURT’S FAILURE TO INFORM THE JURY OF THE STATE’S
                  ELECTION OF THE SPECIFIC INSTANCE OF CONDUCT UPON
                  WHICH IT WAS RELYING FOR CONVICTION AFTER THE
                  DEFENSE REQUESTED THE ELECTION. . . . . . . . . . . . . . . . . . . 2

                  A.        The Record Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

                  B.        The Court of Appeals Opinion . . . . . . . . . . . . . . . . . . . . . . . . . 5

                  C.        Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION . . . 8

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Court of Appeals’ Opinion and Judgment . . . . . . . . . . . . . . . . . . . . . . . Appendix 1



                                                           ii                                                    HODGES v. STATE
                                                                             SECOND CORRECTED PETITION FOR DISCRETIONARY REVIEW
Court of Appeals’ Order Denying Rehearing . . . . . . . . . . . . . . . . . . . . Appendix 2




                                            iii                                               HODGES v. STATE
                                                          SECOND CORRECTED PETITION FOR DISCRETIONARY REVIEW
                                      INDEX OF AUTHORITIES

Cases

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g) . . . . . . 5

Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . 5-7

Dixon v. State, 201 S.W.3d 731 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . . 6

Duffey v. State, 326 S.W.3d 627 (Tex. App.–Dallas 2009, no pet.) . . . . . . . . . . 5, 6

Hodges v. State, No. 02-13-00073-CR, 2014 WL 7204668 (Tex. App.–Fort Worth
December 18, 2014, no pet. h.) (mem. op., not designated for publication) . . viii, 2,
                                                                                 3, 5

Phillips v. State, 193 S.W.3d 904 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . 6

Reza v. State, 339 S.W.3d 706 (Tex App.–Fort Worth 2011, pet ref’d) . . . . . . . . . 5

Statutes and Rules

TEX. CODE CRIM. PROC. ANN. art. 36.19 (Vernon 2006) . . . . . . . . . . . . . . . . . . . . 5

TEX. R. APP. P. 44.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

TEX. R. APP. P. 66.3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

TEX. R. APP. P. 66.3(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

TEX. R. APP. P. 68.4(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii




                                                         iv                                                    HODGES v. STATE
                                                                           SECOND CORRECTED PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS OF

TEXAS:

      COMES NOW CHARLES LEE HODGES, Petitioner, by and through his

attorney of record, WM. REAGAN WYNN, and pursuant to Rule 68, Texas Rules of

Appellate Procedure, files this PETITION FOR DISCRETIONARY REVIEW, and

for such Petition would show this Court as follows:

                STATEMENT REGARDING ORAL ARGUMENT

      This Petition challenges the court of appeals’ application of the egregious harm

standard set required for unobjected to jury charge error rather than the harmless

beyond a reasonable doubt standard applicable to errors implicating fundamental

Constitutional principles of unanimity and notice to a trial court’s total failure to

inform the jury of the specific conduct elected by the State to support a conviction.

The court of appeals’ decision in this case is in direct conflict with a decision from

another court of appeals and resolves an important issue of Texas law that has never

been directly resolved by this Court. Therefore, this Court should grant oral argument

so that counsel for both sides may more fully present their positions and answer any

questions this Court may have after preliminarily reviewing this case.




                                          v                                               HODGES v. STATE
                                                      SECOND CORRECTED PETITION FOR DISCRETIONARY REVIEW
                           STATEMENT OF THE CASE

      Petitioner was convicted by a Tarrant County jury of one count of indecency

with a child by contact for touching the female sexual organ of his biological daughter

with his hand. Testimony was presented at trial concerning several alleged instances

of conduct that, if believed beyond a reasonable doubt, could have supported a

conviction for indecency with a child.

      Outside the presence of the jury, counsel for the State “elected” to proceed with

the testimony concerning the “first time” the alleged injured party claimed Petitioner

touched her in this manner, i.e., a time when she was nine years old. However, the

jury was never informed of this “election” and the trial court took no action to limit

the jury’s consideration the specific instance elected by the State. The State conceded

that the trial court erred by failing to instruct the jury on the State’s election and the

court of appeals held that the trial court erred by failing to do so. However, the court

of appeals determined that the proper harm standard is the egregious harm standard

set out for unobjected to jury charge error and, applying that standard, held that the

error was harmless.

                   STATEMENT OF PROCEDURAL HISTORY

      By an indictment filed March 17, 2010, Petitioner was charged two counts of

indecency with a child alleged to have been committed on or about August 1, 2009,


                                           vi                                                HODGES v. STATE
                                                         SECOND CORRECTED PETITION FOR DISCRETIONARY REVIEW
against his biological daughter.[C.R. 6] Count One of the Indictment alleged that

Petitioner, acting with the intent to arouse and gratify his own sexual desire, engaged

in sexual contact by touching his daughter’s female sexual organ.[C.R. 6] Count Two

alleged that Petitioner, acting with the intent to arouse and gratify his own sexual

desire, engaged in sexual contact by touching his daughter’s breast.[C.R. 6]

      On November 6, 2012, Petitioner appeared in court with his counsel, was

arraigned, and entered a plea of “not guilty” to both of the allegations in the

Indictment. [2 R.R. 6-8]

      Thereafter, a jury was selected,[2 R.R. 16-237] seated,[6 R.R. 237] and

sworn.[6 R.R. 237] The Indictment was read in the presence of the jury and Petitioner

again entered pleas of “not guilty” to both of the allegations against him.[2 R.R. 245-

46]

      Trial on the merits was conducted over two days from November 7-8, 2012.[3

R.R. 6-219; 4 R.R. 6-209] On November 9, 2012, the court gave the case to the

jury.[C.R. 89-82; 15 R.R. 90] On November 12, 2012, the jury returned verdicts of

“guilty” to the allegation in Count One of the Indictment and “not guilty” to the

allegation in Count Two of the Indictment.[6 R.R. 7; C.R. 93]




                                          vii                                              HODGES v. STATE
                                                       SECOND CORRECTED PETITION FOR DISCRETIONARY REVIEW
      The trial on punishment was conducted on January 22, 2013. After hearing

testimony and considering a Presentence Investigation Report, the trial court assessed

Petitioner’s punishment on Count One at incarceration for eight years .[7 R.R. 106]

      The trial court entered its Judgment of Conviction by Jury in accordance with

the jury’s verdict on Count One on January 24, 2013.[C.R. 108-09] The trial court

entered its Judgment of Acquittal by Jury in accordance with the jury’s verdict on

Count Two on the same date.[C.R. 111] Petitioner timely filed his Notice of Appeal

on February 19, 2013.[C.R. 121-22]

      The Second Court of Appeals affirmed the trial court’s judgment and sentence

on July 26, 2006. See Hodges v. State, No. 02-13-00073-CR, 2014 WL 7204668

(Tex. App.–Fort Worth December 18, 2014, no pet. h.) (mem. op., not designated for

publication).1 After receiving two extensions of time, Petitioner timely filed his

Motion for Rearing on January 26, 2015. The Second Court of appeals denied the

Motion for Rehearing on February 5, 2015.2

      On March 10, 2015, this Court entered an order granting Petitioner’s First

Motion for Extension of Time to File Petition for Discretionary Review. Pursuant to


      1
       A copy of the Court of Appeals’ Opinion is attached to this Petition as
Appendix 1. See TEX. R. APP. P. 68.4(i).
      2
         A copy of the Court of Appeals’ Order Denying Rehearing is attached to this
Petition as Appendix 2.

                                         viii                                             HODGES v. STATE
                                                      SECOND CORRECTED PETITION FOR DISCRETIONARY REVIEW
the Order, this Petition was timely if filed in this Court on or before April 8, 2015.

Undersigned counsel timely submitted a Petition for Discretionary Review for filing

on April 8, 2015.

      On April 15, 2015, this Court rejected the Petition for Discretionary Review

submitted by undersigned counsel because it failed to contain the identity of the trial

court judge as required by Rule 68.4(a), Texas. Rules of Appellate Procedure. This

Court directed that undersigned counsel had 10 days to tender a corrected Petition.

      On April 15, 2015, undersigned counsel submitted a Corrected Petition for

Discretionary Review for filing, but subsequently discovered that he had failed to

attach the two appendices. This Second Corrected Petition for Discretionary Review

is now being submitted for filing on April 15, 2015.




                                          ix                                               HODGES v. STATE
                                                       SECOND CORRECTED PETITION FOR DISCRETIONARY REVIEW
              QUESTION PRESENTED FOR REVIEW



       Petitioner was convicted of one count of indecency with a child by
contact, but testimony was presented of several separate incidents of
conduct alleged to have been committed by Petitioner against the alleged
injured party that could have supported conviction for that single count.
Petitioner’s trial counsel requested that the State be forced to elect a
specific instance of alleged conduct, the trial court purported to grant this
request, and, outside the presence of the jury, the State announced its
election. However, the election was erroneously never communicated
in any way to the jury. Did the court of appeals err by analyzing the
harm arising from this error under the egregious harm standard set
required for unobjected to jury charge error rather than the harmless
beyond a reasonable doubt standard applicable to errors implicating
fundamental Constitutional principles of unanimity and notice?




                                     1                                                HODGES v. STATE
                                                  SECOND CORRECTED PETITION FOR DISCRETIONARY REVIEW
        REASONS FOR REVIEW, ARGUMENTS, AND AUTHORITIES

                                          I.

      THE COURT OF APPEALS ERRED BY APPLYING THE
      ARTICLE 36.19/ALMANZA EGREGIOUS HARM STANDARD
      RATHER THAN THE CONSTITUTIONAL ERROR RULE 44.2(a)
      HARMLESS BEYOND A REASONABLE DOUBT STANDARD
      TO THE TRIAL COURT’S FAILURE TO INFORM THE JURY
      OF THE STATE’S ELECTION OF THE SPECIFIC INSTANCE
      OF CONDUCT UPON WHICH IT WAS RELYING FOR
      CONVICTION AFTER THE DEFENSE REQUESTED THE
      ELECTION.

A.    The Record Below

      Count One of the indictment alleged that, on or about August 1, 2009,

Petitioner, acting with the intent to arouse and gratify his own sexual desire, engaged

in sexual contact by touching the alleged injured party’s female sexual organ.[C.R. 6]

      As set forth in the court of appeals’ opinion, at trial, the alleged injured party

testified that Petitioner touched her breasts and crotch “many times” starting when she

was “nine years old.”[3 R.R. 70-73] See Hodges, 2014 WL 7204668, at *2-3. Further,

the alleged injured party’s “outcry statement” described “multiple events” or “multiple

scenarios” of “touching.”[4 R.R. 174] See id. at *1. Finally, Petitioner described both

to the police Detective and during his trial testimony, a single event occurring during

his first weekend visitation with the alleged injured party in August 2009 (when she

would have been 11 years old, just about to turn 12) wherein she placed his hand in


                                          2                                                HODGES v. STATE
                                                       SECOND CORRECTED PETITION FOR DISCRETIONARY REVIEW
her crotch area, but effectively explained that he had no intent to arouse or gratify his

sexual desire during the event. See id. at *4. In short, there was evidence presented

from several different sources indicating that multiple occurrences of the alleged

conduct – i.e., touching the alleged injured party’s female sexual organ – occurred.

       The day before jury selection, Petitioner filed a Motion requesting that State be

required to elect “what offenses the State will rely on to convict on each count” of the

Indictment.[C.R. 65-66]

       During a discussion outside the presence of the jury just prior to the State

calling its last rebuttal witness to testify, the trial court took up the issue of Petitioner’s

request that the State be required to “elect” and the following exchange occurred:

       THE COURT: One other thing that was discussed, and this may be the
       appropriate time to bring it up or put it on the record, [Petitioner’s trial
       counsel], you had previously asked or inquired about the State making
       an election on offenses; is that right?

       [Petitioner’S TRIAL COUNSEL]: Yes, Your Honor.

       THE COURT: You would still like to do that?

       [Petitioner’S TRIAL COUNSEL]: Yes.

       THE COURT: It’s my understanding that the State is going to make
       some sort of election. I mean, are y’all prepared to do that at this time?

       [STATE’S TRIAL COUNSEL]: Yes, Your Honor. The witness testified
       that the first fondling offense and the first breast offense occurred in
       2009 -- I'm sorry, occurred when she was nine years of age, and it


                                              3                                                 HODGES v. STATE
                                                            SECOND CORRECTED PETITION FOR DISCRETIONARY REVIEW
      occurred on the couch at her father's house on Olympia Drive. The first
      incident she described is the primary offense that we will be pursuing in
      each count.

      THE COURT: So will that be adequate for the defendant? For purposes
      of double jeopardy or whatever, the State is relying upon the first alleged
      incident of misconduct when she was nine years old, as I understand it
      from the State. Is that correct?

      [STATE’S TRIAL COUNSEL]: Yes, Your Honor.

      THE COURT: And with that being placed on the record and I understand
      the State will be then arguing that to the jury in its argument.

      [STATE’S TRIAL COUNSEL]: Yes, Your Honor.

      THE COURT: With that being placed on the record, will that be
      adequate for the defense?

      [Petitioner’S TRIAL COUNSEL]: Yes.

      THE COURT: All right.

[4 R.R. 197-98]

      This election was never mentioned, in any way, to the jury. There is no

mention of the State’s election in the Court’s written charge to the jury.[C.R. 89-92]

Further, review of the record reveals that the State’s election was never mentioned in

the presence of the jury. Petitioner’s counsel below made no objections to the court’s

charge.[5 R.R. 6]




                                          4                                                HODGES v. STATE
                                                       SECOND CORRECTED PETITION FOR DISCRETIONARY REVIEW
B.     The Court of Appeals’ Opinion

       In his first point of error below, Petitioner argued that the trial court erred by

failing to limit the jury’s consideration to the particular act designated by the State as

the conduct that would support conviction for the offense alleged in count one of the

Indictment. The State conceded that the trial court erred by failing to instruct the jury

on the State’s election and the court of appeals held that the trial court erred by failing

to do so. See Hodges, 2014 WL 7204668, at *4. The court of appeals then

determined that the proper harm standard is the egregious harm standard set out for

unobjected to jury charge error3 and, applying that standard, held that the error was

harmless. See id. at *5-6.

C.     Analysis

       In determining that the egregious harm standard for unobjected to jury charge

error applies to this particular error, the court of appeals relied on this Court’s decision

in Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App. 2011) and their own prior

decision in Reza v. State, 339 S.W.3d 706 (Tex App.–Fort Worth 2011, pet ref’d).

       The court of appeals’ decision in Reza is directly in conflict with the decision

of the Fifth Court of Appeals in Duffey v. State. See Duffey v. State, 326 S.W.3d 627,



       3
          See, e.g., TEX. CODE CRIM. PROC. ANN. art. 36.19 (Vernon 2006); Almanza
v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).

                                             5                                                HODGES v. STATE
                                                          SECOND CORRECTED PETITION FOR DISCRETIONARY REVIEW
631-32 (Tex. App.–Dallas 2009, no pet.). In Duffey, the court of appeals applied the

reasoning of this Court’s decisions in Phillips v. State, 193 S.W.3d 904 (Tex. Crim.

App. 2006), and Dixon v. State, 201 S.W.3d 731 (Tex. Crim. App. 2006), to hold that

for this exact type of error – failure to in any way instruct the jury on the State’s

election in a child sex case – is subject to Constitutional harm analysis under Rule

44.2(a), Texas Rules of Appellate Procedure, because the error implicates fundamental

Constitutional principles of unanimity and notice. See Duffey, 326 S.W.3d at 631-32.

Duffey has never been expressly overruled or disavowed by this Court. Petitioner

respectfully asserts that the court of appeals erred by evaluating the harm arising from

the trial court’s erroneous failure to instruct the jury on the State’s election under the

egregious harm standard and instead should have reversed the trial court’s judgment

unless it determined beyond a reasonable doubt that the error did not contribute to

Petitioner’s conviction. See Duffey, 326 S.W.3d at 632 (citing TEX. R. APP. P.

44.2(a)).

      Further, the facts underlying this Court’s decision in Cosio are distinguishable

from the facts in this case. Cosio was convicted of four separate counts of sexual

assault of/indecency by contact with a minor female. See Cosio, 353 S.W.3d at 769-

70. The evidence presented at trial was such that there were two different incidents

of conduct that could have satisfied the allegations in Count One, two different


                                            6                                                HODGES v. STATE
                                                         SECOND CORRECTED PETITION FOR DISCRETIONARY REVIEW
incidents of conduct that could have satisfied the allegations in Count Two, and three

different incidents of conduct that could have satisfied the allegations in Counts Three

and Four. See id. at 770-71. Cosio’s attorney did NOT request that the State be

required to elect a specific instance of conduct for each specific count. See id. at 776-

77. Therefore, this Court determined that the error was purely a jury charge error for

failing to require jury unanimity – not for failing to implement the State’s election.

As such, Cosio does not directly address the situation in this case.

      Under these circumstances, this Court should grant review in this matter to

settle an important open question of State law resolved by the court of appeals that has

not previously been addressed by this Court: does a trial court’s erroneous failure to

somehow instruct the jury on the State’s election of the specific conduct to support a

conviction amount to a Constitutional error reviewable under Rule 44.2(a) or is it

simply jury charge error reviewable under the article 36.19/Almanza standard? See

TEX. R. APP. P. 66.3(b). Further, this Court should grant review in this matter to

resolve the conflict between the Second Court of Appeals’ decisions in this case and

Reza and the Fifth Court of Appeals’ decision in Duffey. See TEX. R. APP. P. 66.3(a).

                                       PRAYER

      WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully prays that

this Court will grant this Petition for Discretionary Review, order a full briefing of the


                                            7                                                HODGES v. STATE
                                                         SECOND CORRECTED PETITION FOR DISCRETIONARY REVIEW
issues presented herein, and after considering the merits, reverse the judgment of the

court of appeals, remand this cause to the trial court for a new trial, and grant such

other and further relief as he may show himself deserving, at law and in equity.

                                              Respectfully submitted,

                                              /s/ Wm. Reagan Wynn
                                              WM. REAGAN WYNN
                                              State Bar No. 00797708

                                              KEARNEY | WYNN
                                              One Museum Place
                                              3100 West 7th Street, Suite 420
                                              Fort Worth, Texas 76107
                                              (817) 336-5600
                                              (817) 336-5610 (fax)
                                              rwynn@kearneywynn.com

                                              ATTORNEY FOR PETITIONER

  CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION

      I certify that this Petition was prepared with WordPerfect X5 using Times New
Roman 14 point font, and that, according to that program’s word-count function, the
sections covered by TEX. R. APP. P. 9.4(i)(1) contain 1,466 words.


                                        /s/ Wm. Reagan Wynn
                                       WM. REAGAN WYNN




                                          8                                               HODGES v. STATE
                                                      SECOND CORRECTED PETITION FOR DISCRETIONARY REVIEW
                         CERTIFICATE OF SERVICE

      This is to certify that a copy of this Second Corrected Petition has been
forwarded to:

            Edward L. Wilkinson
            Tarrant County District Attorney’s Office
            401 W. Belknap
            Fort Worth, Texas 76196-0201
            coaapellatealerts@tarrantcounty.com

            Lisa C. McMinn
            State Prosecuting Attorney
            P.O. Box 12405
            Austin, Texas 78711

      on the 15th day of April, 2015.


                                         /s/ Wm. Reagan Wynn
                                        WM. REAGAN WYNN




                                          9                                            HODGES v. STATE
                                                   SECOND CORRECTED PETITION FOR DISCRETIONARY REVIEW
APPENDIX 1
Hodges v. State, Not Reported in S.W.3d (2015)




                  2014 WL 7204668                                    II. FACTUAL AND PROCEDURAL BACKGROUND
    Only the Westlaw citation is currently available.
                                                                    Hodges dated and eventually lived with Sally 2 for several
          SEE TX R RAP RULE 47.2 FOR                                years beginning in 1994, and Sally became pregnant with
    DESIGNATION AND SIGNING OF OPINIONS.                            Hodges's child during that time. Hodges and Sally separated
                                                                    before the child was born. Sally gave birth to Mary in
           MEMORANDUM OPINION
                                                                    September 1997; Hodges went to the hospital for the birth but
      DO NOT PUBLISH TEX. R. APP. P. 47.2(B)
                                                                    had no further contact with Mary until she initiated contact
            Court of Appeals of Texas,
                                                                    with him 2004, when she was approximately six and a half or
                   Fort Worth.
                                                                    seven years old.
              Charles Lee Hodges, Appellant
                           v.                                       2      To protect the anonymity of the child in this case, we
                The State of Texas, State                                  will use aliases to refer to all individuals named herein
                                                                           with the exception of the appellant. See Tex.R.App. P.
               NO. 02–13–00073–CR |                                        9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1
           DELIVERED: December 18, 2014 |                                  (Tex.Crim.App. [Panel Op.] 1982).
           Rehearing Overruled February 5, 2015                     Hodges began having supervised visitations with Mary in
                                                                    2004. He was married to Lana by that time. After several
FROM THE 297TH DISTRICT COURT OF TARRANT                            months, Hodges was awarded standard visitation, with Mary
COUNTY TRIAL COURT NO. 1181223D                                     staying with him and Lana every other weekend.
Attorneys and Law Firms
                                                                    In 2007, Mary saw photographs of Hodges' wedding and
Wm Reagan Wynn, Kearney Wynn, Fort Worth, TX,                       asked him about “French kissing.” Hodges explained what it
Attorney for Appellant.                                             was and demonstrated by kissing her and putting his tongue
                                                                    in her mouth. Mary later “French kissed” her mother and
Joe Shannon, Jr., Crim. Dist. Atty., Charles Mallin, Asst.          said that Hodges had shown her how to kiss. Sally reported
Crim. Dist. Atty., Chief, App. Div., Edward Wilkinson, Lisa         the incident to Child Protective Services (CPS), and after an
Callaghan, Dawn Ferguson, Asst. Crim. Dist. Attys., Fort            investigation, CPS “ruled out” sexual abuse.
Worth, TX, Attorney for State.
                                                                    In 2009, when Mary was nine years old, Sally began to notice
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
                                                                    that Mary was clingy when she came home from weekends
                                                                    at Hodges's house. Mary often called Sally from her bedroom
                                                                    in Hodges's house and asked Sally to stay on the line in case
              MEMORANDUM OPINION 1                                  Mary needed her. That year, Mary attended a church youth
                                                                    retreat at Great Wolf Lodge. At the retreat, Mary confided to
1       See Tex.R.App. P. 47.4.                                     her small group leader, Ann, that she was confused about her
                                                                    sexuality and said that it was because of her dad. Mary told
SUE WALKER, JUSTICE                                                 Ann that Hodges had shown her “inappropriate places” on her
                                                                    body, had touched her there, and had expected her to do the
 *1 I. Introduction Appellant Charles Lee Hodges appeals his        same. Mary also said that Hodges “had French-kissed her on
conviction for indecency with a child. See Tex. Penal Code          the cheek at Six Flags and expected her to do the same thing
Ann. § 21.11(a)(1) (West 2011). In three points, he argues that     back.” Ann took Mary to find the children's pastor from the
the trial court erred by failing to include an instruction in the   church, Jessie, who was also at the retreat. Mary told Jessie
jury charge on the State's election and abused its discretion       that she thought she was a lesbian because she did not like it
by admitting inadmissible opinion and hearsay testimony. We         when boys touched her. When Jessie asked which boys had
will affirm.                                                        touched her, Mary said, “not boys ... my dad.” Jessie then
                                                                    consulted with another adult leader at the retreat, Mark. While
                                                                    talking to Jessie and Mark, Mary said that Hodges “had kissed


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    1
Hodges v. State, Not Reported in S.W.3d (2015)


her with his tongue, that he had touched her down there, which    [ed]” her ear, and told her to do the same to him. When Mary
she motioned with her hands to [be] her private parts, and that   told him that she did not know how to do that, he “seemed a
he helped her with her bra.” Mary also said that Hodges had       little mad,” which made Mary feel bad. Sometimes Hodges
kissed her “mouth to mouth” and that his tongue had touched       would be in Mary's room when she got out of the shower and
her tongue. Mary said that anything that happened between         would watch her get dressed. Hodges would get mad if she
her and Hodges occurred “over a year ago.” Mark and Jessie        ever locked her bedroom door. 3
contacted Sally and CPS.
                                                                  3        At trial, Lana testified that the doorknob to Mary's
 *2 Sally went to Great Wolf Lodge and found her daughter
                                                                           bedroom did not have a lock on it, and a photograph of
crying and “extremely upset.” Mark and Jessie told Sally what
                                                                           the door was introduced into evidence.
Mary had told them. Mary kept apologizing to her mother and
said that she could not remain silent any longer but did not      Mary said that Hodges gave her the “birds and the bees talk”
want to hurt her dad.                                             when she was nine. Hodges explained sexual intercourse and
                                                                  masturbation to her. Hodges touched himself to demonstrate
Hodges called Sally after the retreat to say he was coming        masturbation, or as he called it, “pleasurization.” He told
to visit Mary, but Sally refused. After Hodges got angry,         Mary that all guys will want her body, and he moved his hands
Sally told him “that there was an investigation going on” and     “[o]ver [her] curves.”
gave him the phone number for the investigating detective.
Sally did not tell Hodges what the investigation was about.       Regarding the evidence to support count one of the
Hodges called Detective Aaron Martinez, and the detective         indictment, which alleged that Hodges committed indecency
recorded the conversation. Although the detective had not         with a child by touching Mary's female sexual organ, Mary
yet told Hodges the subject of the investigation, Hodges          testified,
made comments that made the detective realize that Hodges
                                                                      Q. Now, were there times that [Hodges] touched you on
“automatically assum[ed]” that the investigation involved
                                                                      your body parts in a way that made you feel uncomfortable?
“something sexual” with Mary. Hodges told the detective that
Mary had been acting out sexually. He said that Mary ran              A. Yes, ma'am.
around naked at her mother's house and tried to do the same
at his house. Hodges also told the detective about an incident        *3 Q. And can you tell us where you were when this
when Mary “put [his] hand on her crotch” while the two were           would happen?
sitting next to each other watching TV. Hodges said that he
                                                                      A. In the living room at his house.
immediately pulled his hand back and told Mary that he was
not comfortable with that behavior. Hodges told the detective         Q. So do you mean in the living room of [his] house ... ?
that he was going to stop contact with Mary “out of self-
preservation” because her conduct scared him.                         A. Yes, ma'am.

Hodges was ultimately charged with one count of indecency             Q. And where would you be in the living room?
with a child by touching Mary's female sexual organ and
                                                                      A. We would be sitting on the couch and we would be on
with one count of indecency with a child by touching Mary's
                                                                      the left side of the couch.
breast.
                                                                      Q. Did he sit there a lot?
At trial, Mary testified that the first incident with Hodges
that made her “uncomfortable” occured when she asked him              A. Yes, ma'am.
how people “kissed at weddings” when she was nine years
old. Hodges demonstrated by putting his tongue in her mouth.          Q. And what would you be doing?
Mary testified that Hodges “French kissed” her “almost every
                                                                      A. I would be watching TV.
other weekend.” He kissed her in public once while at Six
Flags; they were in line for a snack, he was holding her in           Q. So would he be watching TV as well?
his arms, and he kissed her cheek with his tongue. Another
time, Hodges lay on top of her in his bedroom, “tongue kiss           A. Yes, ma'am.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  2
Hodges v. State, Not Reported in S.W.3d (2015)


                                                                 Detective Martinez also testified at trial, and the recorded
  Q. So the two of you are on the couch watching TV, and         conversation between him and Hodges was admitted into
  what would he do?                                              evidence. Detective Martinez testified that sex offenders
                                                                 commonly blame their actions on the child victim.
  A. He would put his arm around me down my breast and
  down to my private.
                                                                 Hodges testified at trial that he talked to Mary about sexuality
  Q. When you say your private, are you referring to your        when she was nine because she was infatuated with a boy
  genitals or female sexual organ?                               across the street and Hodges was worried that she “might
                                                                 try something sexual with him.” Hodges said he read about
  A. Yes, ma'am.                                                 how to talk to children about sex on the Planned Parenthood
                                                                 website. He told Mary that “masturbation is a perfectly
  Q. Because you're 15 now and you know what that is.            normal thing that you do by yourself in private,” but he did
                                                                 not describe or demonstrate the act of masturbation. Hodges
  A. Yes, ma'am.
                                                                 denied ever showing Mary how to French kiss or kissing her
  Q. And you said he would put his hand down so that it          cheek or tongue with his tongue.
  touched your breast and then touched your genitals?
                                                                  *4 Hodges testified regarding the incident in 2007 that
  A. Yes, ma'am.                                                 resulted in the CPS investigation. He and Mary were
                                                                 wrestling on the couch, Mary was on top of him, they grabbed
Mary explained that this happened “[m]any” times, beginning
                                                                 each other's hands and legs so “there was nothing left but our
when she was nine years old. She said that she would be
                                                                 mouths,” and they started biting each other. Mary “stuck her
wearing either a big T-shirt and underwear or jeans and a T-
                                                                 tongue down in [his] mouth,” and Hodges “jerked back and
shirt and that Hodges would rub his hand on her female sexual
                                                                 said no.” He later discovered that Mary had also French kissed
organ on top of her clothing. She testified that she would try
                                                                 Sally.
to avoid being near Hodges by sitting on the other side of the
couch but that Hodges would act upset or mad so she would
                                                                 Hodges testified that during Mary's first August weekend
go over to where he was sitting. Mary remembered that on
                                                                 visitation in 2009, he and Mary were watching television on
three occasions while sitting on the couch, Hodges asked her
                                                                 the couch when Mary “took [his] hand and put it down in her
to touch his “male parts” and took her hand and placed it on
                                                                 crotch area.” Hodges testified that he “jerked [his] hand back
his “male genital parts” over his clothing. When Mary moved
                                                                 and said no.” He said that he was in shock and later told his
her hand, he placed it back and told her it was okay to touch
                                                                 mother about the incident, although he did not tell Sally. After
him there.
                                                                 that incident, he would not allow Mary to sit next to him or
                                                                 kiss him. He also told Mary that he could not be around her
Mary said that she remembered telling Hodges “no” once
                                                                 if she did “that kind of stuff” again.
when he kissed her neck down to her fingertips and him
responding by “saying something along the lines of this is
                                                                 Hodges also presented evidence that thyroid problems
what daddies and daughters do.” Hodges also told Mary that
                                                                 can cause depression and that depression can lead to
if she ever told anyone, he would not want to see her again.
                                                                 hallucinations and delusions that can be sexual in nature.

On cross-examination, Mary agreed that she had told her
                                                                 During the State's case on rebuttal, the trial court required the
counselor that she “had used this alleged sex abuse for
                                                                 State to elect what incidents of criminal conduct it relied on
bragging rights to get sympathy,” as an excuse for bad
                                                                 for each count of the indictment per Hodges's request for an
behavior, and to get attention. She also agreed that Hodges
                                                                 election. The State elected “the first fondling offense” that
used to get upset with her when she walked around the house
                                                                 occurred on Hodges's couch in 2009, as testified to by Mary.
without clothes on. Mary agreed that her father gave her the
                                                                 The jury was never informed of the State's election by the trial
“birds and the bees” talk because she was “infatuated” with
                                                                 court or by the parties. And the jury charge did not inform the
a boy across the street. Mary also said on cross-examination
                                                                 jury of the State's election. Hodges did not object to the lack
that she has a thyroid disease that can cause depression and
                                                                 of a specific unanimity instruction in the jury charge.
can affect her emotional feelings.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             3
Hodges v. State, Not Reported in S.W.3d (2015)


The jury convicted Hodges of count one of the indictment,
which alleged that on or about August 1, 2009, Hodges                *5 An egregious harm determination must be based on a
“intentionally, with the intent to arouse or gratify [his] sexual   finding of actual rather than theoretical harm. Cosio, 353
desire ..., engage[d] in sexual contact by touching the female      S.W.3d at 777. In conducting our harm analysis, we must
sexual organ of [Mary], a child younger than 17 years and           decide whether the error was so egregious and created such
not the spouse of [Hodges].” The jury found him not guilty          harm that Hodges was deprived of a fair and impartial trial
of the second count, which alleged that on or about August          —in short, that “egregious harm” has occurred. See Celis
1, 2009, Hodges “intentionally, with the intent to arouse or        v. State, 416 S.W.3d 419, 423 n.3 (Tex.Crim.App.2013);
gratify [his] sexual desire ..., engage[d] in sexual contact by     Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985)
touching the breast of [Mary], a child younger than 17 years        (op. on reh'g); see Tex.Code Crim. Proc. Ann. art. 36.19
and not the spouse of [Hodges].” The trial court sentenced          (West 2006). When assessing harm based on the particular
Hodges to eight years' confinement for count one.                   facts of the case, the reviewing court should consider the
                                                                    charge, the state of the evidence, including the contested
                                                                    issues and the weight of the probative evidence, the parties'
                                                                    arguments, and all other relevant information in the record.
             III. ELECTION INSTRUCTION
                                                                    See Cosio, 353 S.W.3d at 777.
In his first point, Hodges argues that the trial court erred by
                                                                    Because the harm in this case stems from the trial court's
failing to instruct the jury of the State's election. 4 The State
                                                                    failure to inform the jury of the State's election, we will also
concedes error but argues that Hodges was not egregiously
                                                                    analyze any potential harm in light of the four purposes of the
harmed by the trial court's error.
                                                                    election requirement: (1) the appellant's need to be protected
                                                                    from the admission of extraneous offenses; (2) the risk that
4       Because the jury acquitted Hodges of count two of           the jury found the appellant guilty of the charged offense not
        the indictment, alleging indecency by touching Mary's
                                                                    because it was proven beyond a reasonable doubt but because
        breast, this issue relates only to count one, alleging
                                                                    of the admission of the extraneous offenses; (3) the risk of a
        indecency by touching Mary's female sexual organ.
                                                                    nonunanimous verdict; and (4) whether the admission of the
When an indictment alleges one sexual assault, but more than        extraneous offenses deprived the appellant of adequate notice
one assault is shown by the evidence at trial, the State is         regarding which offense to defend against. Reza, 339 S.W.3d
required, upon timely request by the defense, to elect as to        at 713, 715; see also Dixon v. State, 201 S.W.3d 731, 734–
the specific incident of sexual assault that the State will use     36 (Tex.Crim.App.2006).
to convict. See Phillips v. State, 193 S.W.3d 904, 909–10
(Tex.Crim.App.2006); O'Neal v. State, 746 S.W.2d 769, 772           Here, the jury charge required only that the jurors
(Tex.Crim.App.1988). Following the State's election of the          “unanimously agree[ ] upon a verdict,” without requiring
act on which it will proceed for conviction, the defendant          unanimity based on the evidence presented in the case. Thus,
is entitled to an instruction charging the jury to consider         the charge permitted a non-unanimous verdict. See Cosio, 353
only the elected act in deciding guilt and limiting the jury's      S.W.3d at 777. Neither party mentioned the State's election
consideration of all other unelected acts to the purposes           during closing arguments, but neither party “added to the
for which they were admitted. Duffey v. State, 326 S.W.3d           charge error[ ] by telling the jury that it did not have to be
627, 630 (Tex.App.—Dallas 2009, no pet.), disagreed with            unanimous about the specific instance of criminal conduct.”
on other grounds by Reza v. State, 339 S.W.3d 706 (Tex.             Id.
App—Fort Worth 2011, pet. ref'd); see Cosio v. State, 353
S.W.3d 766, 776 (Tex.Crim.App.2011). No such instruction            Regarding the state of the evidence, Mary described how,
was included in the jury charge in this case, and because           beginning when she was nine years old, Hodges would put
Hodges did not object to the lack of a proper unanimity             his arm around her while they watched TV on his couch and
instruction, we must evaluate the error for egregious harm.         would touch her breast and her “private.” Hodges testified
See Cosio, 353 S.W.3d at 776–77 (holding that appellant             and admitted to touching Mary's sexual organ, explaining that
forfeited any constitution-based jury charge claim by not           Mary was the one who grabbed his hand and placed it there.
objecting that charge allowed for non-unanimous verdict);           The jury heard Hodges's recorded telephone conversation
Reza, 339 S.W.3d at 714.                                            with Detective Martinez, in which Hodges said that Mary had



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              4
Hodges v. State, Not Reported in S.W.3d (2015)


grabbed his hand and placed it on her sexual organ. Detective     — Fort Worth Aug. 27, 2010, no pet.) (not designated for
Martinez testified that sex offenders commonly blame their        publication). In other words, here, if the jury found Mary's
actions on their child victims.                                   testimony about the offenses of indecency by touching her
                                                                  female sexual organ on several occasions was credible as
We will also consider the four purposes of the election rule in   to one of those occasions, then the jury likewise must have
our harm analysis. See Reza, 339 S.W.3d at 715. Regarding         believed that her testimony was credible as to all of them. 5
the first purpose—Hodges's need to be protected from the          See Dixon, 201 S.W.3d at 735; Reza, 339 S.W.3d at 716.
admission of extraneous offenses—the lack of a specific
unanimity instruction in the jury charge was harmless in          5       And although the jury was not convinced beyond a
regard to this purpose because evidence of other extraneous
                                                                          reasonable doubt that Hodges committed indecency by
sexual acts between him and Mary were admissible to show
                                                                          touching Mary's breast, a review of the record reveals
their relationship and states of mind under article 38.37. See            that the testimony focused on touching Mary's sexual
Tex.Code Crim. Proc. Ann. art. 38.37, § 2 (West Supp.2014);               organ, not her breast. Mary testified generally that
see Dixon, 201 S.W.3d at 734; Phillips, 193 S.W.3d at 909–                Hodges “would put his arm around me down my breast
10; Reza, 339 S.W.3d at 715.                                              and down to my private.”
                                                                  Similarly, regarding the risk of a nonunanimous verdict,
The risk that the jury found Hodges guilty of indecency
                                                                  Mary's testimony regarding Hodges touching her female
by touching Mary's sexual organ based on the admission of
                                                                  sexual organ was general in nature; she testified that it
extraneous offenses, rather than proof of the charged offense
                                                                  happened on his couch while watching TV and differentiated
beyond a reasonable doubt—the second purpose of the
                                                                  between incidents only by what she was wearing on different
election requirement—was low in this case. Mary herself was
                                                                  occasions—a big T-shirt and underwear or a T-shirt and
the one who recounted the multiple acts of indecency here,
                                                                  jeans. We perceive little to no risk that any juror would have
and she testified generally that Hodges fondled her “many
                                                                  believed that Mary's testimony as to the incidents of Hodges
times” on his couch while they were watching television, with
                                                                  touching her sexual organ was credible as to one incident but
the first occurring when she was nine years old. The jury was
                                                                  not as to another. See Dixon, 201 S.W.3d at 735; Reza, 339
not persuaded by Hodges's explanation that Mary initiated the
                                                                  S.W.3d at 716–17.
touching. As the court of criminal appeals explained in Dixon,

             *6 This case is not concerned                        Regarding the final purpose of the election requirement—
            with evidence of different activities                 to provide the defendant with adequate notice about which
            from different sources that a jury                    offense to defend against—when the State made its election
            might perceive to “add up” to the                     at trial, the trial court asked defense counsel if the election
            defendant being guilty even though                    was “adequate,” and defense counsel agreed. Hodges has not
            no individual offense was proven                      indicated that he was adversely affected by not receiving
            beyond a reasonable doubt. Moreover,                  notice of the State's election earlier in the trial. The notice
            the child complainant did not testify                 purpose of the election requirement does not weigh in favor
            about a number of varied incidents                    of a finding of egregious harm. See Duffey, 326 S.W.3d at 634
            with differing details that might have                (holding due process concerns not implicated when defendant
            incrementally added to the idea that the              received timely notice of State's election upon request and
            defendant must have done something                    when counsel expressly acknowledged understanding the
            to provoke the plethora of stories about              election and did not indicate that the defense was adversely
            his activities.                                       affected).

201 S.W.3d at 735. And as we have stated before, “in cases        Having considered the harm to Hodges in light of the charge,
involving ‘complainant testimony of a continuing course of        the state of the evidence, the parties' arguments, and the
the same type of nonspecific, indistinguishable conduct over      purposes of the election rule, we hold that the trial court's error
a long time period, the issue is typically whether the jury       in failing to instruct the jury regarding the State's election
believes the complainant generally or not at all.’ ” Reza, 339    was not so egregious and did not create such harm as to deny
S.W.3d at 715 (quoting Smith v. State, Nos. 02–08–00394–          Hodges a fair and impartial trial. See Almanza, 686 S.W.2d at
CR, 02–08–00395–CR, 2010 WL 3377797, at *13 (Tex. App             171; see also Cosio, 353 S.W.3d at 777; Dixon, 201 S.W.3d


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Hodges v. State, Not Reported in S.W.3d (2015)


at 734–36; Phillips, 193 S.W.3d at 913–14; Reza, 339 S.W.3d       State, 402 S.W.3d 252, 254 (Tex.Crim.App.2013); Sample
at 717. We overrule Hodges's first point.                         v. State, 405 S.W.3d 295, 300 (Tex.App.—Fort Worth 2013,
                                                                  pet. ref'd). Further, the trial court must have ruled on the
                                                                  request, objection, or motion, either expressly or implicitly, or
                                                                  the complaining party must have objected to the trial court's
  IV. ADMISSIBILITY OF OPINION TESTIMONY
                                                                  refusal to rule. Tex.R.App. P. 33.1(a)(2); Pena v. State, 353
 *7 In his second point, Hodges argues that the trial court       S.W.3d 797, 807 (Tex.Crim.App.2011). A reviewing court
abused its discretion by allowing the State to present, in its    should not address the merits of an issue that has not been
case on rebuttal, opinion evidence concerning Mary's good         preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473
character for truthfulness when her character for truthfulness    (Tex.Crim.App.2010) (op. on reh'g); Sample, 405 S.W.3d at
had not been attacked. Hodges's complaint concerns the            300.
following testimony of Jessie, one of the adult leaders at the
church retreat:                                                   Here, defense counsel objected to relevancy, “capab[ility] or
                                                                  competen[cy] to answer the question,” and nonresponsive,
  Q. What is your opinion of [Mary]'s character for               and he obtained a ruling on only his nonresponsive objection.
  truthfulness?                                                   Defense counsel did not preserve his rule 608 argument for
                                                                  appeal. See Tex.R.App. P. 33.1(a)(1); Landers, 402 S.W.3d
  [DEFENSE COUNSEL]: Objection, Your Honor. That's                at 254; Sample, 405 S.W.3d at 300; see also Tex.R. Evid.
  not—that's not relevant, or she's not capable or competent      608(a) (setting forth requirements for admission of character
  to answer that question. Not a proper question.                 evidence). We overrule Hodges's second point.
  THE COURT: I think there may be a preliminary question
  in front of that. You may rephrase at this point if you would
  like to.                                                          V. ADMISSIBILITY OF HEARSAY TESTIMONY

  Q. (BY [THE STATE] ) In your experiences with [Mary],           In his third point, Hodges argues that the trial court abused
  have you formed an opinion as to her character for              its discretion by admitting Sally's testimony about certain
  truthfulness?                                                   statements made by Mary in violation of the hearsay rule.
                                                                  Specifically, he complains of Sally's testimony that she once
  A. Yes.                                                         saw Mary “tugging her shirt down to show her cleavage and
                                                                  part of her breasts because that's what Daddy said he liked.”
  Q. And is it good or bad?
                                                                  After the trial court overruled defense counsel's hearsay and
  A. I would say she's been truthful with me.                     nonresponsive objections, Sally explained that Mary had said
                                                                  she showed her cleavage
  [DEFENSE COUNSEL]: Objection. That's nonresponsive,
  Your Honor.                                                                  because that's what Daddy liked and
                                                                               that made Daddy happy and turned
  THE COURT: Just listen carefully. Just respond to the                        Daddy on, because he pointed out
  question.                                                                    somebody at Golden Corral that had
                                                                               on a low-cut shirt and was showing off
  THE WITNESS: Sorry.
                                                                               her breasts, and that [Mary] wanted to
  Q. (BY [THE STATE] ) So it's a good one?                                     make Daddy happy and please Daddy.
                                                                               And that's what made Daddy happy
  A. Yes.                                                                      and pleased him.

To preserve a complaint for our review, a party must have         “ ‘Hearsay’ is a statement, other than one made by the
presented to the trial court a timely request, objection, or      declarant while testifying at the trial or hearing, offered in
motion that states the specific grounds for the desired ruling    evidence to prove the truth of the matter asserted.” Tex.R.
if they are not apparent from the context of the request,         Evid. 801(d). The “hearsay rule” excludes the admission of
objection, or motion. Tex.R.App. P. 33.1(a)(1); Landers v.        hearsay evidence, but the rules of evidence also provide that



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Hodges v. State, Not Reported in S.W.3d (2015)



many types of hearsay evidence are not excluded by the
                                                                      Here, we have detailed the evidence presented at trial,
hearsay rule. See Tex.R. Evid. 802, 803, 804.
                                                                      including Mary's testimony about how Hodges fondled
                                                                      her on many occasions, French kissed her, demonstrated
 *8 In this case, we need not decide whether the complained-
                                                                      masturbation to her, and watched her change clothes.
of statements constitute inadmissible hearsay because, even
                                                                      Hodges vigorously cross-examined Mary and Sally about the
assuming that they were, any error in their admission
                                                                      allegations and presented evidence in an attempt to contradict
was harmless. Error in the admission of hearsay evidence
                                                                      Mary's testimony, such as evidence that her door did not have
is subject to harmless error analysis under rule 44.2(b).
                                                                      a lock and that her shower had an opaque shower curtain.
Tex.R.App. P. 44.2(b); see Mosley v. State, 983 S.W.2d
                                                                      The jury heard Hodges's testimony denying or explaining
249, 259 (Tex.Crim.App.1998) (op. on reh'g), cert. denied,
                                                                      the allegations against him, including his explanation of
526 U.S. 1070 (1999); Moon v. State, 44 S.W.3d 589, 594
                                                                      the Golden Corral incident. Hodges said that Mary had
(Tex.App.—Fort Worth 2001, pet. ref'd). A substantial right
                                                                      asked what “sexy” meant and he had pointed out a woman
is affected when the error had a substantial and injurious
                                                                      at Golden Corral who was wearing a low-cut blouse and
effect or influence in determining the jury's verdict. King
                                                                      said that the woman was “trying to be sexy.” The State
v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (citing
                                                                      did not mention the Golden Corral incident during closing
Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct.
                                                                      argument, instead emphasizing Mary's testimony, Hodges's
1239, 1253 (1946)). Conversely, an error does not affect a
                                                                      incriminating statements to the detective, and Hodges's
substantial right if we have “fair assurance that the error did
                                                                      explanation of the August 1, 2009 incident. We conclude that,
not influence the jury, or had but a slight effect.” Solomon v.
                                                                      in the context of the entire case against Hodges, any error in
State, 49 S.W.3d 356, 365 (Tex.Crim.App.2001); Johnson v.
                                                                      the admission of Sally's testimony set forth above did not have
State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998).
                                                                      a substantial or injurious effect on the jury's verdict and did
                                                                      not affect Hodges's substantial rights. See King, 953 S.W.2d
In making this determination, we review the record as a
                                                                      at 271. Thus, we disregard the alleged error. See Tex.R.App.
whole, including any testimony or physical evidence admitted
                                                                      P. 44.2(b). We overrule Hodges's third point.
for the jury's consideration, the nature of the evidence
supporting the verdict, and the character of the alleged
error and how it might be considered in connection with
other evidence in the case. Motilla v. State, 78 S.W.3d 352,                               VI. CONCLUSION
355 (Tex.Crim.App.2002). We may also consider the jury
instructions, the State's theory and any defensive theories,          Having overruled Hodges's three points, we affirm the trial
whether the State emphasized the error, closing arguments,            court's judgment.
and even voir dire, if applicable. Id. at 355–56.

End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 7
APPENDIX 2
                                                                          FILE COPY




                         COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                              NO. 02-13-00073-CR


CHARLES LEE HODGES                                                   APPELLANT

                                         V.

THE STATE OF TEXAS                                                         STATE


                                    ------------

        FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 1181223D

                                    ------------

                                    ORDER

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      We have considered “Appellant’s Motion For Rehearing.”

      It is the opinion of the court that the motion for rehearing should be and is

hereby denied and that the opinion and judgment of December 18, 2014, stand

unchanged.

      The clerk of this court is directed to transmit a copy of this order to the

attorneys of record.n
                                                       FILE COPY




    SIGNED February 5, 2015.

                                      /s/ Sue Walker
                                      SUE WALKER
                                      JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.




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