                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-17-00532-CR

                                        Barry G. COGGINS,
                                             Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 437th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2016CR2480
                           Honorable Lori I. Valenzuela, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: November 14, 2018

AFFIRMED

           Appellant Barry G. Coggins was convicted by a jury of indecency with a child. On appeal,

Coggins contends: (1) the evidence is legally insufficient to prove he acted with the intent to arouse

or gratify the sexual desire of any person; (2) the jury charge failed to adequately apply the law to

the facts; and (3) the trial court erred in admitting improper speculative evidence during the

punishment phase of the trial. We affirm the trial court’s judgment.
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                                          BACKGROUND

        Coggins was charged in a two count indictment with continuous sexual abuse of a child

and indecency with a child. The complainant was the daughter of Coggins’s girlfriend.

        The case was tried to a jury. The jury acquitted Coggins of the offense of continuous sexual

abuse of a child but found him guilty of the indecency with a child offense. The jury assessed

Coggins’s punishment at twenty years’ imprisonment and a $10,000 fine, and the trial court

sentenced Coggins accordingly. Coggins appeals.

                                       LEGAL SUFFICIENCY

        In his first issue, Coggins contends the evidence is legally insufficient to prove he acted

with the intent to arouse or gratify the sexual desire of any person. Although acknowledging a

jury may infer this element of the offense “from the defendant’s conduct, his remarks and all

surrounding circumstances,” see McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981),

Coggins argues a finding of such an intent in the instant case would not be rational because the

jury found he was not guilty of the offense of continuous sexual abuse of a child, and one of the

acts of sexual abuse which the jury could have used to find him guilty was the indecency with a

child offense. Therefore, Coggins’s argument is basically that the jury’s verdict finding him guilty

of indecency with a child is inconsistent with its verdict acquitting him of continuous sexual abuse

of a child.

        First, we note the jury charge on the continuous sexual abuse of a child offense required

the jury to find two or more acts of sexual abuse. The jury could have found Coggins committed

the indecency with a child offense but no other act of sexual abuse.            More importantly,

“[i]nconsistent verdicts in prosecutions based on the same evidence do not require a reversal on

the ground of legal insufficiency.” Moore v. State, No. 04-12-00490-CR, 2013 WL 3148650, at

*1 (Tex. App.—San Antonio June 19, 2013, pet. ref’d) (not designated for publication) (citing
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Dunn v. United States, 284 U.S. 390, 393–94 (1932); Thomas v. State, 352 S.W.3d 95, 101 (Tex.

App.—Houston [14th Dist.] 2011, pet. ref’d); Jackson v. State, 3 S.W.3d 58, 61 (Tex. App.—

Dallas 1999, no pet.)). “‘Inconsistent verdicts do not necessarily imply that the jury convicted the

defendant on insufficient evidence, but may simply stem from the jury’s desire to be lenient or to

execute its own brand of executive clemency.’” Id. (quoting Thomas, 352 S.W.3d at 101). “Even

where an inconsistent verdict might have been the result of compromise or mistake, the verdict

should not be upset by appellate speculation or inquiry into such matters.” Id. (citing Jackson, 3

S.W.3d at 61–62). Because inconsistent verdicts do not require reversal on the ground of legal

sufficiency and Coggins does not otherwise challenge the sufficiency of the evidence to support

the jury’s verdict, we overrule his first issue.

                                            JURY CHARGE

        In his second issue, Coggins contends the jury charge failed to adequately apply the law to

the facts. Coggins does not challenge the abstract portion of the jury charge which properly

instructed, “Our law provides a person commits the offense of indecency with a child by sexual

contact if he intentionally or knowingly engages in sexual contact with the child.” Although

“sexual contact” is statutorily defined to include any touching by a person of the anus, breast, or

any part of the genitals of a child, see TEX. PENAL CODE ANN. § 21.11(c)(1), the jury charge

narrowed the definition providing, “‘Sexual contact’ means any touching by a person, including

touching through clothing, of any part of the genitals of a child, with the intent to arouse or gratify

the sexual desire of any person.” The application paragraph of the charge instructed the jury to

find Coggins guilty of indecency with a child by sexual contact if:

        you find from the evidence beyond a reasonable doubt that on or about the 30th
        Day of November, 2014, in Bexar County, Texas, the defendant, Barry Coggins,
        did intentionally or knowingly engage in sexual contact with [E.N.], a female child
        younger than 17 and not the spouse of Barry Coggins, by touching part of the
        genitals of [E.N.] with the intent to arouse or gratify the sexual desire of any person.
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       Coggins’s brief on this issue contains only two paragraphs of argument. In the first

paragraph, Coggins asserts trial counsel objected during the charge conference “that the

application paragraph failed to adequately set forth the manner and means whereby the offense

was allegedly committed,” and the objection was overruled. The record, however, establishes trial

counsel did not object to the application paragraph failing to set forth the “manner and means.”

Instead, trial counsel objected the application paragraph did not include a “means” arguing, “Like

I said which part, how he did it.”

       In the second paragraph of his argument, Coggins asserts:

           The trial court is obligated by statute to submit a written charge to the jury
       “distinctly setting forth the law applicable to the case.” Art. 36.14, Tex. Code Crim.
       Proc. Ann. (West 2018)[.] The application paragraph of a jury charge is that which
       authorizes conviction, and an abstract charge on a theory of law which is not applied
       to the facts is insufficient to bring that theory before the jury. McFarland v. State,
       928 S.W.2d 482 (Tex. Crim. App. 1996); Jones v. State, 815 S.W.2d 667 (Tex. Crim.
       App. 1996). In the case at hand the application paragraph is no more than an
       abstract charge on the offense charged in count 2 of the indictment, and wholly fails
       to adequately apply that law to the facts as presented to the jury. Consequently, it
       appears that the charge as given was calculated to injure the rights of the appellant
       and resulted in some harm and as a result, reversal of the judgment is required.
       Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985).

       It is unclear from the brief what “means” Coggins contends the application paragraph of

the jury charge failed to adequately set forth. To the extent Coggins argues the jury charge was

required to set forth the mode he used to touch the complainant, he has not identified more than

one mode of touching was supported by the evidence. See Ferreira v. State, 514 S.W.3d 297, 302

(Tex. App.—Houston [14th Dist.] 2016, no pet.). Nothing on the face of the charge appears

erroneous, and Coggins has not directed us to any portions of the record containing evidence

germane to his charge error complaint. See id. at 303. Therefore, Coggins has not adequately

briefed this issue for our review. See id.; TEX. R. APP. P. 38.1(i) (brief must contain a clear

argument with appropriate citations to the record); see also Lawton v. State, 913 S.W.2d 542, 554


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(Tex. Crim. App. 1995) (“Appellant leaves us to find error and argue his case for him; this is

inadequate briefing, and as such, it presents nothing for our review.”), overruled on other grounds

by Mosley v. State, 983 S.W.2d 249, 263, n.18 (Tex. Crim. App. 1998) (op. on reh’g)).

       Even if we overlooked the inadequate briefing, “[o]ur first duty in analyzing a jury-charge

issue is to decide whether error exists.” Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App.

2005). The Texas Court of Criminal Appeals has held that the offense of indecency with a child

by contact is a conduct-oriented offense, and sexual contact as defined by the Texas Penal Code

“criminalizes three separate types of conduct—touching the anus, touching the breast, and

touching the genitals with the requisite mental state.” Pizzo v. State, 235 S.W.3d 711, 719 (Tex.

Crim. App. 2007). How the touching was effectuated is simply an alternative mode of commission

and is not an essential element of the offense. Id. at 717; State v. Shuck, 222 S.W.3d 113, 116

(Tex. App.—Houston [14th Dist.] 2006, no pet.); Hilliard v. State, 652 S.W.2d 602, 605 (Tex.

App.—Austin 1983, pet. ref'd, untimely filed). The omission of a mode of commission that is not

an essential element of the offense from the application paragraph of a jury charge is not error.

Moss v. State, No. 07-12-00067-CR, 2013 WL 4625021, at *4 (Tex. App.—Amarillo Aug. 2, 2013,

pet. ref’d) (not designated for publication).

       Coggins’s second issue is overruled.

                                           LAY OPINION

       In his final issue, Coggins contends the trial court erred in allowing the State to introduce

improper speculative evidence during the punishment phase of trial. Specifically, Coggins

complains about the following testimony by the complainant’s mother:

           Q. What do you see -- how do you see this affecting her relationships in the
       future with significant others?
           [Defense counsel]: I’m going to object to speculation. She’s not an expert.
       She can’t testify to this, Judge.


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           THE COURT:         I am going to give her a little leeway. It’s overruled. Go
       ahead.
           Q. [By prosecutor]: What do you fear about her relationships in the future with
       significant others?
           A. I don't know if she’ll want to become close to anyone. I think that she
       doesn’t have faith in people right now except for those that are very close to her. I
       hope that changes with time. But right now I think that she’s -- just should focus
       on herself. So that’s what we’re focusing on.

In his brief, Coggins contends the testimony was admitted in violation of Rule 701 which limits

lay opinion testimony.

       “The admissibility of evidence is within the discretion of the trial court and will not be

reversed absent an abuse of discretion.” Osbourn v. State, 92 S.W.3d 531, 537–38 (Tex. Crim.

App. 2002). Initially, we are unclear whether Coggins’s complaint is that the mother’s testimony

was speculation, as stated in his issue, or an improper lay witness opinion, as argued in his brief.

A speculation objection is directed at lack of personal knowledge under Rule 602 of the Texas

Rules of Evidence while the propriety of a lay witness opinion is embodied in Rule 701. Liller v.

State, No. 08-15-00125-CR, 2018 WL 1959679, at *3–4 (Tex. App.—El Paso Apr. 26, 2018, pet.

ref’d) (not designated for publication); Burks v. State, No. 05-13-00852-CR, 2014 WL 5141663,

at *5 (Tex. App.—Dallas Oct. 14, 2014, no pet.) (not designated for publication). Because the

only law cited in Coggins’s brief relates to lay witness testimony, we will address whether the trial

court abused its discretion in admitting the testimony because it was an improper lay witness

opinion. Because trial counsel objected both on the grounds of speculation and that the mother

was not an expert witness, we consider the issue sufficiently preserved for our review.

       “Both lay and expert witnesses can offer opinion testimony.” Osbourn, 92 S.W.3d at 535.

“Rule 701 covers the more traditional witness—one who ‘witnessed’ or participated in the events

about which he or she is testifying.” Id. “A witness can testify in the form of an opinion under

Rule 701 if the opinions or inferences are (a) rationally based on his or her perceptions and (b)


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helpful to the clear understanding of the testimony or the determination of a fact in issue.” Id.

“Since Rule 701 requires the testimony to be based on the witness’s perception, it is necessary that

the witness personally observed or experienced the events about which he or she is testifying.” Id.

“Thus, the witnesss testimony can include opinions, beliefs, or inferences as long as they are drawn

from his or her own experiences or observations.” Id.

        In this case, the complainant’s mother was initially asked how the sexual abuse would

affect the complainant’s relationships with significant others in the future. This question was

directed at the mother’s perceptions based on her personal observations of the complainant and

elicited her opinion based on those perceptions and her own experiences. Accordingly, the trial

court did not err in overruling the objection. 1 Cf. Fierro v. State, 706 S.W.2d 310, 317 (Tex. Crim.

App. 1986) (noting lay witness can testify regarding defendant’s future dangerousness).

        Coggins’s third issue is overruled.

                                               CONCLUSION

        The judgment of the trial court is affirmed.

                                                      Rebeca C. Martinez, Justice

DO NOT PUBLISH




1
  We note the prosecutor rephrased the question after the objection and asked what the mother feared about the
complainant’s future relationships. The mother’s fears are clearly based on her own perceptions.

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