                                 NO. 12-17-00106-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

 RAYFORD BERNARD SMITH,                         §      APPEAL FROM THE 85TH
 APPELLANT

 V.                                             §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                       §      BRAZOS COUNTY, TEXAS

                                 MEMORANDUM OPINION
         Rayford Bernard Smith appeals his conviction for continuous sexual abuse of a child.
Appellant raises two issues on appeal. We affirm.


                                        BACKGROUND
         The victim lived with her siblings and her mother at an apartment complex in Cameron,
Texas.    The victim and her mother had a “rocky” relationship.       Appellant worked as the
maintenance man at the complex. In 2011, Appellant began dating the victim’s mother.
         In August 2012, the victim and her family moved to College Station, Texas. Appellant
moved in with them. On September 14, 2012, the victim’s mother had a conversation with the
victim’s grandmother and aunt concerning her relationship with Appellant. The victim overheard
them discussing their belief that her mother received a sexually transmitted disease (STD) from
Appellant. The victim became very upset and told them that Appellant has “been having sex with
me as well,” and stated that they had sex “lots of times” while she lived in Cameron and College
Station. The victim’s mother and aunt took her to the Cameron Police Department and made a
report, and they were subsequently sent to a hospital in Temple, Texas, where the victim had a
sexual assault examination.
        The victim told the sexual assault nurse examiner (SANE) that she had a long-term sexual
relationship with Appellant. She reported that it last occurred on September 12 and 13, 2012.
Since the victim reported intercourse that occurred within the previous ninety-six hours, the SANE
nurse conducted a SANE exam, which revealed no acute injury to the victim’s genital area or any
STDs. However, the victim’s underwear and vulva swab samples taken from the victim contained
biological material coming from semen. Subsequent DNA testing of the samples revealed a partial
DNA profile from the sperm cell fraction found on the victim’s vulva swabs, showing that it was
2.81 billion times more likely that the DNA profile came from Appellant. The material taken from
the victim’s underwear showed a single-source DNA profile that was 2.88 quintillion times more
likely to have come from Appellant.1 The oral, vaginal, and perianal swabs revealed no semen.
The forensic scientist performing the test acknowledged that it was possible for Appellant’s DNA
to transfer from other items to the victim’s underwear while being washed in the same washing
machine, and that it was possible for his DNA to transfer from her underwear to her vulva.
        Investigating officers searched the College Station apartment and discovered areas on the
floor that displayed suspected spots of bodily fluid near where the victim indicated that she and
Appellant had sex. The investigating officer conducted a “presumptive test” on those areas,
resulting in a presumptive positive for semen. The officer collected swab samples.
        The forensic scientist who subsequently tested the carpet swab samples first conducted a
differential extraction process, whereby the sperm cells in the samples are separated from the
epithelial or skin cells, which often come from the vagina. The epithelial fraction showed that it
was 1.53 septillion times more likely in the first sample, and 3.81 undecillion times more likely in
the second sample, that the cells came from the victim, Appellant, and an unknown individual.
The first epithelial sample excluded the victim’s mother as a contributor, whereas the second
epithelial sample was inconclusive. The sperm cell fraction in both samples came from a single
individual, and it was 2.62 quintillion times more likely that the first sample came from Appellant,
and 4.16 quintillion times more likely that the second sample came from Appellant. The scientist
acknowledged that it is possible that the victim’s DNA masked that of her mother, but he did not
believe that it was an issue in this case. The scientist also noted that it was possible that the victim
and the unknown individual’s DNA transferred onto the carpet by walking on it, and that he could


        1
          The forensic scientist also noted that the victim’s own DNA was not found on her underwear, but that she
had observed this in past cases.


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not be one hundred percent sure that the DNA came from intercourse between the victim and
Appellant.
        Based on the investigation, Appellant was arrested and indicted for continuous sexual
abuse of a young child. Appellant pleaded “not guilty” to the offense and the matter proceeded to
a jury trial.
        In addition to the aforementioned evidence, the victim testified at trial that, between
September 2011 and September 2012, she and Appellant had sex approximately thirty times at
Appellant’s apartment in Cameron, that they had sex four or five times after moving to College
Station, and that they had sex after she turned fourteen.2 She testified that they had sex at the
College Station apartment on the floor in the living room near the stairs, and upstairs on the floor
near a wall that separates the master bedroom from the staircase. On cross-examination, the victim
denied recanting the abuse allegations.
        Appellant testified that he did not engage in any inappropriate sexual behavior with the
victim at any point. He testified that the victim is a “good liar,” that these allegations were false,
and that the victim contrived this elaborate lie to “get back” at her mother and please her
grandmother. He stated he had sex with the victim’s mother in the apartment downstairs by the
wall near the kitchen, by the front door, and upstairs. He testified that he would ejaculate on the
victim’s mother, including her gown, or on his hand, and that he noticed that some of it dropped
on the floor. He explained that he cleaned himself and that he would place the clothing or towels
containing his semen into the family’s shared soiled clothes basket. On cross-examination by the
State, Appellant testified that the victim knew where Appellant and the victim’s mother had sex
and told police where they would find Appellant’s DNA mixed with hers. When confronted with
the fact that his DNA was discovered on the victim’s underwear, he explained that it must have
transferred in the laundry.
        The victim’s mother testified as a defense witness and stated that she never noticed any
inappropriate behavior. She testified that she did not believe the victim and that she was dishonest
and unpredictable. She explained that the victim snuck boys in the apartment in the past. She
initially stated that she never suspected that Appellant and the victim were in a relationship, and
incorrectly recalled that she learned about the allegations via a phone call from the victim’s
grandmother. On cross-examination by the State, she clarified that she learned of the allegations

        2
            The victim’s fourteenth birthday was on September 2, 2012.


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during her discussion with the victim’s aunt and grandmother concerning her having received an
STD from Appellant. She also remembered telling one of the investigating officers that the victim
would sneak out of the apartment to visit Appellant, that she believed the victim and Appellant
appeared to be close, and that the victim had developed inappropriate feelings for Appellant. She
also testified that other family members expressed their concerns about the relationship between
the victim and Appellant. However, she stated her belief that the victim became too attached to
Appellant, but she did not believe that any abuse occurred. She also testified that she and Appellant
had sex downstairs in the living and in their bedroom on the carpet, and that Appellant would
ejaculate onto the carpet. Finally, she testified that other people told her that the victim recanted.
       The victim’s brother testified that he never saw anything inappropriate occur between
Appellant and the victim. He also testified that the victim did not have a good reputation for being
truthful. Appellant also offered testimony from Kimberly Morton, who provided testimony that
she spoke with the victim, who recanted. Morton testified that during the investigation, she heard
the victim recant in front of a College Station police officer. She testified that she told Appellant’s
brother and sister, along with the victim’s mother, that the victim recanted. She admitted that she
did not tell anyone else even though she knew Appellant had been arrested.
       After the parties rested, Appellant requested a lesser-included offense instruction for sexual
assault of a child based on the September 2012 College Station incident that occurred after the
victim turned fourteen, which the trial court denied. The jury found Appellant guilty of the offense,
and after a punishment hearing, sentenced him to imprisonment for life. Appellant filed a motion
for new trial, which the trial court denied after a hearing. This appeal followed.

                            LESSER-INCLUDED OFFENSE INSTRUCTION
       In his first issue, Appellant contends that the trial court erred when it refused to include his
requested instruction for the lesser-included offense of sexual assault of a child for the offense that
occurred after the victim turned fourteen.
Standard of Review and Applicable Law
       We review the trial court’s denial of a lesser-included offense instruction for
an abuse of discretion. Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004). In
determining whether an instruction on a lesser-included offense is required, we apply a two-step
analysis. See Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993); see also Feldman




                                                  4
v. State, 71 S.W.3d 738, 750 (Tex. Crim. App. 2002). The first step requires the defendant to
establish that the lesser-included offense is included within the proof necessary to establish the
charged offense. TEX. CODE CRIM. PROC. ANN. art 37.09 (West 2006); Feldman, 71 S.W.3d at
750; Rousseau, 855 S.W.2d at 672. To satisfy the second step of the analysis, the record must
include some evidence that would permit a jury to rationally find that, if guilty, the defendant is
guilty only of the lesser-included offense. Feldman, 71 S.W.3d at 750; Rousseau, 855 S.W.2d at
672.
       In the first step, we compare the elements of the offense, as charged in the indictment or
information, with the elements of the asserted lesser-included offense. State v. Meru, 414 S.W.3d
159, 162 (Tex. Crim. App. 2013); Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007).
In relevant part, a person commits the offense of continuous sexual abuse of a young child if,
during a period that is 30 or more days in duration, the person commits two or more acts of
statutorily defined “sexual abuse” such as sexual assault of a child under Texas Penal Code Section
22.011, the victim is a child younger than 14 years of age, and the actor is 17 years of age or older.
TEX. PENAL CODE ANN. § 21.02(b), (c)(3) (West Supp. 2017). Because acts of statutorily defined
sexual abuse against children like sexual assault of a child are necessary predicates to the
underlying offense, the sexual assault offense is a lesser-included offense of continuous sexual
abuse of a child and satisfies the first step of the analysis. See Soliz v. State, 353 S.W.3d 850, 854
(Tex. Crim. App. 2011).
       In the second step, there must be some evidence directly germane to the lesser-included
offense for the fact finder to consider before an instruction on a lesser-included offense is
warranted. Bullock v. State, 509 S.W.3d 921, 925 (Tex. Crim. App. 2016). It is not enough that
the jury may disbelieve crucial evidence pertaining to the greater offense. Id. We must consider
all of the evidence admitted at trial, not just that presented by the defendant. Goad v. State, 354
S.W.3d 443, 446 (Tex. Crim. App. 2011). The evidence must establish the lesser-included offense
is a valid, rational alternative to the charged offense. Id. In other words, there must be some
evidence that would permit the jury to rationally acquit the defendant of the greater offense and
still convict him of the lesser offense. Sorto v. State, 173 S.W.3d 469, 476 (Tex. Crim. App.
2005). Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser
charge. Goad, 354 S.W.3d at 446. However, we are not permitted to consider the credibility of
the evidence and whether it conflicts with other evidence or is controverted. Id. at 446–47.



                                                  5
“Meeting this threshold requires more than mere speculation—it requires affirmative evidence that
both raises the lesser-included offense and rebuts or negates an element of the greater offense.”
Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012).
Discussion
       The parties do not dispute that the first step of the analysis is satisfied—that sexual assault
of a child is a lesser-included offense of continuous sexual abuse of a young child as alleged in the
indictment. See Soliz, 353 S.W.3d at 854. We agree.
       Regarding the second step of the analysis, Appellant argues that the trial court should have
given his requested lesser-included offense instruction for sexual assault, because the only
conceivable credible physical evidence connecting him to any offense was for the alleged offense
that occurred after the victim turned fourteen years old.         Moreover, Appellant’s argument
continues, the remaining evidence is based entirely on the victim’s testimony and her outcry, which
he alleges is “suspect and discredited.” Thus, Appellant concludes, the jury could have acquitted
him of the continuous sexual abuse of a young child offense, which requires that the child be under
the age of fourteen at the time of the abuse, and still found him guilty of sexual assault of a child.
       Appellant’s defense at trial was that he committed no acts of abuse. He testified in his own
defense and presented evidence from other witnesses that the victim recanted and was not
trustworthy, attempting to show that she fabricated all the acts of alleged sexual abuse. With
respect to the assault that occurred after the victim turned fourteen, in addition to his denial,
Appellant also attempted to refute the physical scientific evidence presented by the State.
Specifically, Appellant argued that after having sex with the victim’s mother in College Station,
his semen likely dropped on the floor as well as her gown, on which he would clean himself, and
he subsequently washed the gown with the family’s dirty clothes, including the victim’s
underwear. Therefore, Appellant theorized, DNA from his semen transferred to the victim’s
underwear and her vulva as part of their ordinary laundry routine.
       Appellant’s denial does not entitle him to his requested instruction because it
also denies the commission of the lesser offense. See, e.g., Lofton v. State, 45 S.W.3d 649, 652
(Tex. Crim. App. 2001) (“A defendant’s own testimony that he committed no offense, or testimony
which otherwise shows that no offense occurred at all, is not adequate to raise the issue of a lesser-
included offense.”); Saunders v. State, 840 S.W.2d 390, 391–92 (Tex. Crim. App. 1992) (holding
that if defendant denies commission of offense, charge on lesser offense not required).



                                                  6
       Moreover, it is inapposite that the victim may have later made contradictory statements,
because we may not consider whether the evidence is credible, controverted, or in conflict with
other evidence. Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). There must be
affirmative evidence that both raises the lesser-included offense and rebuts or negates an element
of the greater offense. See Cavazos, 382 S.W.3d at 385. This evidence pertaining to the victim’s
truthfulness furthers Appellant’s defense that no sexual abuse occurred, but it does not negate
continuous sexual abuse while also affirmatively raising only sexual assault of a child.
       Thus, on the one hand, the State’s evidence at trial is that Appellant committed numerous
acts of sexual abuse, before and after the victim turned fourteen. On the other hand, Appellant
offered evidence attempting to show that he committed no acts of sexual abuse. Although there is
evidence that Appellant committed sexual assault of a child for the incident that occurred after the
victim turned fourteen, the record does not rationally support a finding that he committed only that
single instance of sexual abuse. Accordingly, there is no evidence from which a rational jury could
both acquit Appellant of the greater offense of continuous sexual abuse of a young child while
convicting him of the lesser-included offense of sexual assault of a child. In other words,
considering all the evidence admitted at trial, there is no evidence that only one instance of sexual
abuse occurred, or that if more than one instance of sexual abuse occurred, all of them occurred in
less than a thirty-day period or after the victim’s fourteenth birthday. Rather, the record establishes
that the victim was sexually assaulted by Appellant numerous times within the statutorily-required
period as alleged in the indictment. Therefore, we hold that the trial court did not abuse its
discretion in denying Appellant’s lesser-included offense instruction. See Gonzales v. State, No.
04-14-00100-CR, 2015 WL 5037692, at *3 (Tex. App.—San Antonio Aug. 26, 2015, pet. ref’d)
(mem. op., not designated for publication) (holding that defendant not entitled to lesser-included
offense instruction in similar case). Appellant’s first issue is overruled.


                               EXTRANEOUS OFFENSE INSTRUCTION
       In his second issue, Appellant contends that he was egregiously harmed when the trial court
commented on the weight of the evidence in its Texas Code of Criminal Procedure Article 38.37
instruction concerning the September 2012 College Station extraneous offense that occurred after
the victim turned fourteen.




                                                  7
Standard of Review and Applicable Law
       Texas Code of Criminal Procedure Article 38.37 Section 2(b) provides in relevant part as
follows:


                Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and subject to Section 2–a,
       evidence that the defendant has committed a separate offense described by Subsection (a)(1) or (2)
       may be admitted in the trial of an alleged offense described by Subsection (a)(1) or (2) for any
       bearing the evidence has on relevant matters, including the character of the defendant and acts
       performed in conformity with the character of the defendant.


TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b) (West 2018). The offense of continuous sexual
abuse of a young child is one of the offenses described by Subsection (a)(1). See id. § 2(a)(1)(B).
Before evidence described by Section 2 may be introduced, the trial judge must:

                (1) determine that the evidence likely to be admitted at trial will be adequate to support a
       finding by the jury that the defendant committed the separate offense beyond a reasonable doubt;

                and

                (2) conduct a hearing out of the presence of the jury for that purpose.


See id. § 2-a (West Supp. 2017). The hearing requirement is subject to the general requirement of
preservation, and is therefore subject to forfeiture. See Carmichael v. State, 505 S.W.3d 95, 103
(Tex. App.—San Antonio 2016, pet. ref’d) (citing TEX. R. APP. P. 33.1; Mendez v. State, 138
S.W.3d 334, 342 (Tex. Crim. App. 2004)).
       We review unpreserved jury charge error for egregious harm. Villarreal v. State, 453
S.W.3d 429, 433 (Tex. Crim. App. 2015). Egregious harm is a “high and difficult standard” to
meet, and such a determination must be “borne out by the trial record.” Id. Jury charge error is
egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable
right, or vitally affects a defensive theory. Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App.
2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006). To obtain a reversal for
jury charge error, the defendant must have suffered actual harm and not just merely theoretical
harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012); Arline v. State, 721 S.W.2d
348, 352 (Tex. Crim. App. 1986). In reviewing the record for egregious harm, the reviewing court
should consider the following: (1) the entire jury charge, (2) the state of the evidence, including
the contested issues and the weight of probative evidence, (3) the final arguments of the parties,



                                                        8
and (4) any other relevant information revealed by the record of the trial as a whole. Allen v. State,
253 S.W.3d 260, 264 (Tex. Crim. App. 2008).
Discussion
       The trial court provided an extraneous offense instruction based on the College Station
sexual assault that occurred after the victim turned fourteen. The court’s instruction provided as
follows:

                There has been introduced testimony and evidence of an extraneous offense other than the
       one charged in the indictment in this case, namely, Sexual Assault of a Child, in that the defendant,
       on or about the 13th day of September, 2012, in Brazos County, Texas, intentionally or knowingly
       caused the penetration of the sexual organ or mouth of [the victim], a child who was then and there
       younger than 17 years of age, by the defendant’s sexual organ.

                 Any testimony and evidence that the defendant has committed the separate offense of
       Sexual Assault of a Child was admitted for any bearing that testimony and evidence has on relevant
       matters, including the character of the defendant and acts performed in conformity with the character
       of the defendant. You cannot consider such testimony and evidence unless you find and believe
       beyond a reasonable doubt the defendant committed the separate offense.


       Appellant contends that the trial court did not include any qualifier language such as “if
any” following the recitation of the allegations in the instruction, leaving the jury with the
impression that the trial court believed the extraneous offense allegation was true. Accordingly,
Appellant’s argument continues, this was an improper comment on the weight of the evidence.
       Appellant acknowledges that he did not object on this ground or the lack of an Article 38.37
hearing. Therefore, to the extent that he complains of the trial court’s failure to hold a hearing in
his brief, he has forfeited this complaint. See Carmichael, 505 S.W.3d at103. Nevertheless,
Appellant argues that because the lesser-included offense instruction for the September 2012
sexual assault was denied for the same offense referenced in the extraneous offense instruction, he
was egregiously harmed by the trial court’s expression of apparent belief in its viability. We
disagree.
       The instruction merely expresses that there has been testimony and evidence introduced
pertaining to the extraneous sexual assault. Furthermore, the second paragraph instructs the jury
that it may not consider the testimony and evidence unless it finds that Appellant committed the
extraneous offense beyond a reasonable doubt. This is a correct statement of the law concerning
Article 38.37 extraneous offense evidence.              See TEX. CODE CRIM. PROC. ANN. art. 38.37,
§§ 2(a)(1)(B), (b); 2-a. The court properly instructed the jury on the elements of the extraneous



                                                        9
offense as well as the underlying offense. Additionally, the charge properly instructed the jury on
such relevant matters as reasonable doubt, the presumption of innocence, the prosecution’s burden
of proof, and the jury’s exclusive role as the fact finder, including assessing the credibility of the
witnesses and the weight to be given their testimony.
       As part of his argument, Appellant contends that the physical scientific evidence pertaining
to the extraneous offense provided the crucial link to the underlying offense, which was based
solely on the victim’s allegations. The testimony of a child victim alone is sufficient to support a
conviction for continuous sexual abuse of a child. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a)
(West Supp. 2017); Garner v. State, 523 S.W.3d 266, 271 (Tex. App.—Dallas 2017, no pet.). In
any event, Article 38.37 allows the use of the extraneous offense for all relevant purposes,
including character conformity. See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b); Baez v. State,
486 S.W.3d 592, 598-99 (Tex. App.—San Antonio 2016, pet. ref’d).
       In Baez, the jury charge instructed the jury that it could consider other extraneous acts of
sexual misconduct between the defendant and another child other than the victim for all relevant
purposes, including character conformity, provided they believed beyond a reasonable doubt that
the defendant committed the extraneous offense. Baez, 486 S.W.3d at 598. Similar to the
defendant in Baez, Appellant argues that the extraneous offense instruction in the jury charge is
erroneous because it allowed the jury to consider other acts of sexual misconduct after the victim
turned fourteen years old to support the underlying charge of continuous sexual abuse in the
indictment. See id. at 598. However, like the charge in Baez, the jury charge in this case properly
informed the jury of the elements of continuous sexual abuse and the underlying offenses
supporting it, while separately identifying the extraneous sexual assault of a child offense, its
elements, and how it may be considered by the jury. See id. at 598-99. The court in Baez held
that the trial court properly included the instruction because the statute allows evidence to be
admitted for all purposes including character conformity, and the jury charge in question properly
informed the jury of the elements of the continuous sexual abuse offense including the individual
acts and the relevant time period, so as to avoid any confusion by the jury. See id. We agree with
the reasoning in Baez.
       Accordingly, the trial court did not err or improperly comment on the weight of the
evidence in including its extraneous offense instruction under Article 38.37, and in any event,
Appellant was not egregiously harmed thereby. See id. Appellant’s second issue is overruled.



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                                                  DISPOSITION
         Having overruled Appellant’s two issues, the judgment of the trial court is affirmed.

                                                                 GREG NEELEY
                                                                    Justice


Opinion delivered October 24, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          OCTOBER 24, 2018


                                         NO. 12-17-00106-CR


                                  RAYFORD BERNARD SMITH,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                 Appeal from the 85th District Court
                     of Brazos County, Texas (Tr.Ct.No. 16-04025-CRF-85)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
