                                          COURT OF APPEALS
                                       EIGHTH DISTRICT OF TEXAS
                                            EL PASO, TEXAS

 MITCHELL WINDELL WAGNER,                                 §
                                                                             No. 08-09-00021-CR
                      Appellant,                          §
                                                                                Appeal from the
 v.                                                       §
                                                                              363rd District Court
 THE STATE OF TEXAS,                                      §
                                                                            of Dallas County, Texas
                      Appellee.                           §
                                                                              (TC# F-0772250-W)
                                                          §

                                                  OPINION

         Appellant, Mitchell Wagner, was convicted of aggravated sexual assault of a child and

sentenced to life imprisonment. In four issues on appeal, Appellant challenges the factual

sufficiency of the evidence and contends that there was error in the jury charge. We affirm.1

                                                BACKGROUND

         Between ages five and nine, Miesha Norris spent several weekends with Appellant, a music

minister at the church she attended, while Miesha’s mom, Sheila, took care of her grandmother, who

suffered from Alzheimer’s disease. Miesha thought of Appellant, who was a close friend of

Miesha’s mom, as a father figure. Appellant, who liked to help single mothers, was aware of

Sheila’s care taking duties and offered to let Miesha spend weekends with him so that he could take

her to his church.

         During those visits, Miesha and Appellant played “pony ride,” a game he told Miesha was

normal and a secret, in Appellant’s bedroom. The game, which Appellant created, required Miesha


        1
            As this case has been transferred to our Court, we “decide the case in accordance with the precedent of
the transferor court” in arriving at our conclusion. See T EX . R. A PP . P. 41.3.
to sit on top of him as they played a Nintendo game. Miesha and Appellant were either completely

or partially unclothed during the game, and at a certain point, Appellant’s penis penetrated Miesha’s

vagina. Although the penetration was uncomfortable, Miesha grew accustomed to it over time as

they played pony ride several times during the course of one weekend. Sometimes the game

continued into the night when Miesha slept with Appellant in his bed. At times, she woke without

any clothes on and some bleeding, but she thought it was just part of the game. Appellant told

Miesha not to tell anyone.

       Miesha was sexually assaulted in other parts of the house, as well. When she was seven,

Miesha would lay on a bed, in a small room off of the kitchen, and Appellant would lay on top of

her. They were naked from the waist down, and Appellant, while Miesha’s legs were bent and her

knees apart, would insert his “hard” penis into her vagina and move it back and forth.2 The same

assault occurred in the living room on the couch. By this time, Miesha was used to sexual

intercourse with Appellant and enjoyed it.

       When Miesha was ten, her father moved home and she stopped spending time with

Appellant. But when her father died four years later, Miesha saw Appellant a few times and initiated

sexual intercourse with him on one occasion. During that encounter, Appellant used a condom.

       When Miesha started staying with Appellant, her behavior changed. She had to be restrained

and taken by ambulance to a hospital twice, once for biting her mother and once for acting out at

school. She also broke Sheila’s jewelry. Miesha was diagnosed with Attention Deficit Disorder and

prescribed Ritalin. After her father died and Miesha resumed contact with Appellant, Miesha’s

behavior worsened. At fifteen or sixteen, Sheila questioned Miesha about her behavior, and Miesha

told her about the sexual abuse. Sheila took Miesha to the Parkland Rape Crisis Center, sought help

       2
           At trial, the State elected to proceed on this offense.
from Promise House, and worked with a therapist at the Dallas Children’s Advocacy Center. When

Sheila felt Miesha was ready to discuss it, she reported the abuse to the police, which made Miesha

angry.

         Miesha later spoke with Dallas Police Detective Jerry Williams and Dallas County

Investigator Greg Sherrell. During her interview with Williams, Miesha disclosed that Appellant

started sexually abusing her when she was six, that the sexual assaults continued until she was eight,

and that they played “pony ride,” a game where she would sit on Appellant’s penis and move up and

down. Her interview with Sherrell was similar except that Miesha claimed the abuse occurred

between the ages of five and ten. Miesha, however, did not tell Williams or Sherrell about the sexual

encounter when she was fourteen.

         At trial, Ellen Elliston, the director of the Victim Intervention and Rape Crisis Center at

Parkland Hospital, testified that young children are vulnerable and compliant and that some adults

engage in grooming where they build a relationship with a child through time and attention for

purposes of engaging in sexual activity with the child. According to Elliston, playing a “pony ride”

game with a child that resulted in sexual activity was consistent with how an adult manipulates a

child into engaging in sexual activity as the groomer leads the child to believe that the activity is

normal. Elliston noted that the abuser is generally someone the child knows and that the lack of a

father figure makes a child especially vulnerable. Only a small percentage of children lie about being

sexually abused.

         Dr. Matthew Cox, the director of REACH, a child abuse program at Children’s Medical

Center, testified that it is common for children to delay disclosure of sexual abuse, that the insertion

of a male penis into a child’s vagina may not cause serious physical harm, and that a physical exam

of a fifteen- or sixteen-year-old girl claiming past sexual abuse will rarely yield any injuries as those
injuries would have healed quickly.

        Appellant’s daughter and son, Sophia and Chris Wagner, who lived with him during the time

of the alleged assault, testified that Miesha did not attend church with them and never spent the

weekend at their house. According to Chris, Miesha visited their house a few times for only thirty

minutes to an hour, but she never spent the night. However, Mildred Guy, a member of Miesha’s

church, testified that Miesha had a reputation for being truthful and honest.

                                    FACTUAL SUFFICIENCY

        In his first issue, Appellant contends that the evidence is factually insufficient to support his

conviction. According to the indictment, Appellant was alleged to have committed the offense by

penetrating Miesha’s vagina with his penis. Although Appellant concedes that the evidence is

legally sufficient to support the charged indictment, he argues that the evidence is factually

insufficient as Miesha’s testimony was incredible.

                                         Standard of Review

        A person commits aggravated sexual assault of a child where he intentionally and knowingly

causes the penetration of the sexual organ of a child younger than fourteen years of age by any

means. TEX . PENAL CODE ANN . § 22.021(a)(1)(B)(i), (a)(2)(B) (Vernon Supp. 2009). A child’s

testimony alone is sufficient to support a conviction for aggravated sexual assault. See TEX . CODE

CRIM . PROC. ANN . art. 38.07 (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.–Dallas

2002, pet. ref’d).

        In reviewing the factual sufficiency of the evidence, we review all of the evidence in a neutral

light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt.

Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008). Evidence can be factually insufficient

in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems
clearly wrong and manifestly unjust; and (2) when the supporting evidence is outweighed by the

great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong

and manifestly unjust. Id. “Although an appellate court has the ability to second-guess the jury to

a limited degree, the factual-sufficiency review should still be deferential, with a high level of

skepticism about the jury’s verdict required before a reversal can occur.” Id.

                                             Application

        Recognizing that Miesha’s testimony alone is sufficient to support his conviction for

aggravated sexual assault of a child, Appellant asserts that her testimony was incredible for three

reasons. First, Appellant claims that as the abuse occurred several years prior to the trial, Miesha’s

accounts were unreliable. Second, Appellant alleges that Miesha misunderstood the abuse since she

believed the sexual intercourse, at the time of the abuse, was normal. And third, Appellant contends

that because he was incarcerated during some of the periods Miesha alleged the abuse occurred, and

that because his son and daughter testified that Miesha never spent the night, much less spent more

than thirty minutes to an hour at his house, we should find her testimony incredible.

        Although Miesha was eighteen at the time of trial and the offense Appellant was convicted

of occurred when Miesha was seven years old, nothing in her testimony indicates that her memory

of the sexual abuse was inaccurate. To the contrary, Miesha was able to describe in detail the assault

that happened in the back room, noting that they were naked from the waist down and that she would

lie on the bed, with her knees bent and apart, and her feet on the bed as Appellant penetrated her

vagina with his penis. She testified that it happened several times, and her relation of the assault was

consistent. The jury was entitled to believe Miesha’s testimony despite the gap in time. See Newby

v. State, 252 S.W.3d 431, 436 (Tex. App.–Houston [14th Dist.] 2008, pet. ref’d) (stating that courts

give wide latitude to testimony given by child victims of sexual abuse); Smith v. State, No. 08-03-
00461-CR, 2005 WL 277702, at *3-4 (Tex. App.–El Paso Feb. 3, 2005, no pet.) (op., not designated

for publication) (deferring to jury’s assessment of credibility and holding evidence sufficient in

aggravated-sexual-assault-of-a-child case, despite claims that victim was incredible and had a faulty

memory, when victim never wavered from her story that Appellant sexually assaulted her).

        Moreover, even if Miesha believed the sexual abuse was normal, we are not concerned with

Miesha’s understanding of the abuse as right or wrong. Rather, we are concerned with Appellant’s

intent, and Elliston relayed that a child molester grooms the child and convinces her that sexual

activity with an adult is normal. And when, as here, the victim lacks a father figure, the child is

especially vulnerable. Therefore, the jury could have reasonably inferred that Appellant groomed

Miesha into thinking the prohibited sexual abuse was normal. Although Miesha thought the abuse

was a game, that does not discount the fact that the abuse was still a statutory prohibited act. See

Mendiola v. State, No. 01-02-00556-CR, 2003 WL 22413903, at *4-5 (Tex. App.–Houston [1st

Dist.] Oct. 23, 2003) (mem. op., not designated for publication) (finding evidence factually sufficient

when complainant informed outcry witness that defendant attempted to make her touch his middle

part and evidence showed defendant’s repeated requests for hugs and kisses, and questioned whether

complainant loved him, were consistent with “grooming” the complainant for later sexual contact),

habeas corpus granted on other grounds by Ex parte Mendiola, No. AP-75,476, 2006 WL 2075667

(Tex. Crim. App. Jul. 26, 2006) (op., not designated for publication).

        Finally, to any extent that Miesha’s statement that she spent 42 out of 52 weekends at

Appellant’s house from September 1, 1995, to September 1, 1996, conflicted with documentation

admitted at trial showing Appellant was incarcerated from March 1996 to July 1996, or the testimony

of Appellant’s children, we note that this was a credibility issue and conflict the jury was entitled to

resolve. The jury, as the sole judge of the weight and credibility of the witnesses, could have chosen
to believe Miesha’s testimony over that of Chris and Sophia, and could have rationally concluded

that the sexual abuse occurred when Miesha spent those weekends in 1996 at Appellant’s house

when he was not incarcerated. See Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990)

(stating we cannot expect a child victim to testify with the same clarity and ability as mature, capable

adults); see also Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008) (jury resolves

credibility issues); Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991) (jury resolves

conflicts in evidence).

        In short, we have reviewed the evidence in a neutral light and conclude that the evidence

supporting Appellant’s guilt is not sufficiently outweighed by contrary evidence. Appellant’s attacks

on Miesha’s credibility went to the weight of the evidence, not its sufficiency. It was within the

jury’s province to judge the credibility of the witnesses and choose to believe all, some, or none of

their testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). Moreover, it was

the function of the jury to resolve any conflicts in the evidence. See Lancon, 253 S.W.3d at 705.

The evidence is not insufficient simply because the jury chose to accept the State’s version of the

events over that of the defense. Saxton, 804 S.W.2d at 914. Here, the jury was free to believe

Miesha’s testimony, accept Elliston’s theories, and resolve any conflicts in the State’s favor.

Similarly, it was within the jury’s exclusive province to disbelieve the testimony of Appellant’s

children, who noted that they wished to prevent their father from being incarcerated. After reviewing

Miesha’s testimony and the entire record, we do not find it so incredible that we should set aside the

jury’s verdict as manifestly unjust. Accordingly, we, having reviewed all the evidence in a neutral

light, find the evidence factually sufficient and overrule Appellant’s first issue.

                                          JURY CHARGE

        Appellant’s remaining issues contend that there was error in the jury charge. Specifically,
Appellant claims that the jury charge failed to limit the definitions of intentionally and knowingly

to the requisite mental state (Issue Two), and that the definition of reasonable doubt (Issue Three)

and the good conduct time instruction (Issue Four) should have been excluded.

                                         Standard of Review

       We employ a two-step analysis when reviewing alleged error in the jury charge. Torres v.

State, 116 S.W.3d 208, 210 (Tex. App.–El Paso 2003, no pet.). First, we determine whether error

actually exists in the charge. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984),

overruled on other grounds, Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988); Torres,

116 S.W.3d at 210-11. If we find error, we then determine whether sufficient harm resulted

therefrom to require reversal. Almanza, 686 S.W.2d at 171; Torres, 116 S.W.3d at 211. When, as

here, there was no objection to the jury charge, Appellant must show egregious harm resulting from

the error. Almanza, 686 S.W.2d at 171; Torres, 116 S.W.3d at 211.

                                         Conduct Elements

       Appellant’s second issue contends that aggravated sexual assault of a child is a nature-of-the-

conduct offense, and as such, the trial court erroneously charged the jury by failing to limit the

definitions of intentionally and knowingly to the culpable mental state. The relevant parts of the jury

charge are set out below:

               A person acts intentionally, or with intent, with respect to the nature
               of his conduct or to a result of his conduct when it is his conscious
               objective or desire to engage in the conduct or cause the result.

               A person acts knowingly, or with knowledge, with respect to the
               nature of his conduct or to circumstances surrounding his conduct
               when he is aware of the nature of his conduct or that the
               circumstances exist. A person acts knowingly, or with knowledge,
               with respect to a result of his conduct when he is aware that his
               conduct it reasonably certain to cause the result.
The application paragraph stated:

                 Now if you find from the evidence beyond a reasonable doubt that on
                 or about the 1st day of June, A .D., 1998, in Dallas County, Texas,
                 the defendant, Mitchell Windell Wagner, did unlawfully, then and
                 there intentionally or knowingly cause the contact or penetration of
                 the female sexual organ of Miesha Norris, a child, who was not then
                 the spouse of the defendant, by an object, to-wit: the sexual organ of
                 said defendant . . . and at the time of the offense, the child was
                 younger than 14 years of age, then you will find the defendant guilty
                 of aggravated sexual assault of a child as charged in the indictment.

          An offense may be labeled both result oriented and nature of the conduct. McQueen v. State,

781 S.W.2d 600, 603 (Tex. Crim. App. 1989). However, when an offense is only result oriented or

nature of the conduct, the court should limit the statutory definitions of knowingly and intentionally

to the culpable mental state required. Murray v. State, 804 S.W.2d 279, 281 (Tex. App.–Fort Worth

1991, pet. ref’d); Saldivar v. State, 783 S.W.2d 265, 267-68 (Tex. App.–Corpus Christi 1989, no

pet.). In contrast, if an offense is not clearly result oriented or nature of the conduct, the trial court

does not err by submitting both in its definitions of knowingly and intentionally. Saldivar, 783

S.W.2d at 267; Bosier v. State, 771 S.W.2d 221, 225 (Tex. App.–Houston [1st Dist.] 1989, pet.

ref’d).

          Here, the parties agree that the Court of Criminal Appeals has not addressed whether

aggravated sexual assault of a child is a result-oriented or nature-of-the-conduct offense. However,

the Eastland Court of Appeals has concluded that the offense involves both result-of-conduct and

nature-of-conduct elements. See Baker v. State, 94 S.W.3d 684, 690 (Tex. App.–Eastland 2002, no

pet.). The Dallas Court of Appeals has noted that “until the Court of Criminal Appeals classifies

aggravated sexual assault [of a child] as either a result oriented or nature of the conduct offense, it

is not error for the trial court to submit the complete definition of intentionally and knowingly.” See

Martinez v. State, No. 05-00-00517-CR, 2002 WL 257697, at *3 (Tex. App.–Dallas Feb. 25, 2002,
no pet.) (op., not designated for publication); see also Mays v. State, No. 05-02-01376-CR, 2003 WL

22405169, at *5 (Tex. App.–Dallas Oct. 22, 2003, pet. ref’d) (op., not designated for publication);

Harris v. State, No. 05-98-01727-CR, 2000 WL 567231, at *5 (Tex. App.–Dallas May 11, 2000, no

pet.) (op., not designated for publication). As this case has been transferred to us from the Dallas

Court of Appeals, we adopt our sister court’s conclusion and hold that until aggravated sexual assault

of a child has been categorized as a result-oriented or nature-of-conduct offense by the Court of

Criminal Appeals, the trial court does not err by submitting both definitions of “intentionally” and

“knowingly” in the jury charge. See TEX . R. APP . P. 41.3. Accordingly, because both instructions

were given in this case, we find no error in the charge and overrule Appellant’s second issue.

                                         Reasonable Doubt

       In his third issue, Appellant contends that the trial court erred by including a definition of

reasonable doubt in the jury charge. Specifically, Appellant complains of the following instruction:

“It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the

prosecution’s proof excludes all ‘reasonable doubt’ concerning the defendant’s guilt.” According

to Appellant, such an instruction violates the Court of Criminal Appeals’ mandate that no definition

of reasonable doubt may be given in the jury charge. See Paulson v. State, 28 S.W.3d 570, 573 (Tex.

Crim. App. 2000).

       However, we have already held, in accordance with many of our sister courts, that the

instruction given in this case does not constitute a definition of reasonable doubt in violation of

Paulson but rather simply states the legally correct proposition that the prosecution’s burden is to

establish proof beyond a reasonable doubt and not beyond all doubt. See Torres, 116 S.W.3d at 212;

see also Bates v. State, 164 S.W.3d 928, 931 (Tex. App.–Dallas 2005, no pet.); O’Canas v. State,

140 S.W.3d 695, 701-02 (Tex. App.–Dallas 2003, pet. ref’d); Ochoa v. State, 119 S.W.3d 825, 829
(Tex. App.–San Antonio 2003, no pet.); Fluellen v. State, 104 S.W.3d 152, 163-64 (Tex.

App.–Texarkana 2003, no pet.); Minor v. State, 91 S.W.3d 824, 828-29 (Tex. App.–Fort Worth

2002, pet. ref’d); Carriere v. State, 84 S.W.3d 753 , 759 (Tex. App.–Houston [1st Dist.] 2002, pet.

ref’d) (cases finding no error in the inclusion of the instruction in the jury charge); but see Rodriguez

v. State, 96 S.W.3d 398, 405 (Tex. App.–Austin 2002, pet. ref’d); Phillips v. State, 72 S.W.3d 719,

721 (Tex. App.–Waco 2002, no pet.) (cases disapproving of the instruction in the jury charge).

Accordingly, the inclusion of the instruction was not error, and we overrule Appellant’s third issue.

                                                  Good Conduct

         Appellant’s fourth issue alleges that the trial court erred by including an instruction for good

conduct time in the punishment charge when by statute, he was ineligible for good conduct time

credit. See TEX . GOV ’T CODE ANN . § 508.149(a)(8) (Vernon Supp. 2009). However, article 37.07,

§ 4(a) mandates the inclusion of the instruction in the jury charge, and the Court of Criminal Appeals

has concluded that although the instruction dictated by the statute may appear to be misleading and

inapplicable to some defendants, the statute nonetheless commands that the instruction be given.

See TEX . CODE CRIM . PROC. ANN . art. 37.07, § 4(a) (Vernon Supp. 2009); Luquis v. State, 72 S.W.3d

355, 363 (Tex. Crim. App. 2002). Therefore, inclusion of the instruction was not error.3 Luquis, 72

S.W.3d at 363; Borens v. State, No. 05-07-01516-CR, 2009 WL 998678, at *6 (Tex. App.–Dallas

Apr. 15, 2009, no pet.) (mem. op., not designated for publication); Garrett v. State, No. 08-01-

00258-CR, 2004 WL 540427, at *2 (Tex. App.–El Paso Mar. 18, 2004, pet. ref’d) (op., not

designated for publication).



        3
           In concluding that the instruction was error, Appellant cites Jimenez v. State, 992 S.W .2d 633 (Tex.
App.–Houston [1st Dist.] 1999), aff’d on other grounds, 32 S.W .3d 233 (Tex. Crim. App. 2000). However,
Appellant has failed to note the Court of Criminal Appeals’ later decision in Luquis or that Jimenez was expressly
overruled in Bui v. State, 68 S.W .3d 830, 834, 841, 843-44 (Tex. App.–Houston [1st Dist.] 2002, no pet.).
        Nevertheless, Appellant claims the instruction violated article 36.14, which requires the trial

court to present a written charge to the jury that distinctly sets forth the law applicable to the case,

and that it misled the jurors, which violated his rights to a fair trial. See TEX . CODE CRIM . PROC .

ANN . art. 36.14 (Vernon 2007). Although the instruction may appear to conflict with the court’s duty

to properly set forth the law applicable to the case, the instruction refers to parole and good conduct

time only as possibilities, not certainties. In addition, the charge included language admonishing the

jury not to consider how parole law or good conduct time may apply to Appellant and informed the

jury that he may serve his entire sentence without early release. We therefore conclude the court did

not err in including the mandated instruction. See Cagle v. State, 23 S.W.3d 590, 594 (Tex.

App.–Fort Worth 2000, pet. ref’d); Battaglia v. State, No. 05-06-00798-CR, 2007 WL 4098905, at

*3 (Tex. App.–Dallas Nov. 19, 2007, no pet.) (op., not designated for publication) (cases rejecting

identical argument).

        Furthermore, other than Appellant’s statement that the instruction misled the jurors, he has

pointed to nothing in the record to suggest that the jury was actually misled by the instruction. Apart

from a jury note asking whether “life” is a “term of imprisonment” and whether there is a difference

between life and ninety-nine years, which may suggest that the jury discussed, considered, or tried

to apply what they were told about good conduct time and parole, the jury was subsequently told to

continue deliberating with the law provided, and given the court’s charge that they were not to

consider good conduct time as applied to Appellant, we presume the jury followed the court’s

instruction. See Colburn v. State, 966 S.W.2d 511, 519-20 (Tex. Crim. App. 1998) (jury was

presumed to follow trial court’s instruction not to consider possibility of parole even though jury had

sent out note, in capital murder trial, asking whether parole was a possibility if a life sentence were

assessed). Moreover, neither the prosecutor nor defense attorney discussed good conduct time in
argument or urged the jury to assess a greater (or lesser) sentence based upon any potential good

conduct time credit, and although Appellant received the maximum sentence possible, life in prison,

that is unsurprising given the crime, his abysmal criminal record, and his three prior extraneous

aggravated sexual acts committed against children.4 See Luquis, 72 S.W.3d at 367-68 (concluding

Appellant was not deprived of due process by the inclusion of the good conduct time instruction

when counsel refrained from discussing it during argument and his criminal record was horrible).

Accordingly, we conclude the instruction did not violate his rights to a fair trial.

         Finding no error in the charge, we overrule Appellant’s fourth issue.

                                                   CONCLUSION

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



                                                         GUADALUPE RIVERA, Justice

May 28, 2010

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)




         4
          During the punishment phase of the trial, three women testified to being sexually abused by Appellant
when they were five, six, and thirteen years old. Further, his prior convictions for robbery, assault, retaliation, theft,
and indecency with a child were admitted.
