Opinion filed June 6, 2013




                                    In The


        Eleventh Court of Appeals
                                  __________

                             No. 11-12-00206-CR
                                 __________

                     BRAXTON MENDOZA, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 421st District Court
                           Caldwell County, Texas
                         Trial Court Cause No. 11-150


                      MEMORANDUM OPINION
      The jury found Braxton Mendoza guilty of aggravated sexual assault of
M.M., a child younger than fourteen years of age. Appellant elected to have the
trial court assess his punishment. The trial court assessed his punishment at con-
finement for seventeen years and sentenced him accordingly. We affirm.
                                I. Trial Evidence
      There is no challenge to the sufficiency of the evidence, but we will
summarize it so that Appellant’s sole complaint on appeal—related to the jury
charge—is placed in proper context. Appellant is R.M. and J.M.’s grandson. The
victim, M.M., also is R.M. and J.M.’s grandchild and is Appellant’s cousin. The
evidence shows that, when Appellant was seventeen years old and M.M. was ten
years old, Appellant sexually assaulted her. Appellant lived with R.M and J.M. in
Lockhart at the time, and although M.M. had stayed with R.M. and J.M. for a time
in the past, she was visiting there on the occasion of this sexual assault.
      M.M. testified that, in August 2010, S.M., M.M.’s aunt who was close in age
to M.M., came in from school and went to take a shower. While S.M. was taking a
shower, Appellant came into the living room from his bedroom and sat on the
couch next to M.M. M.M. testified that Appellant got on top of her, took his
“private part” out of a hole in his boxers, and put his “private part” inside of her
“private part.” She said that he moved up and down once his penis was inside of
her vagina and that it hurt. She described his penis as long and brown with hair on
top. M.M. cried and asked Appellant to stop, but he refused and said, “I know you
like this, I know you do.” M.M. testified that she saw a white substance come out
of his penis and onto his pants. M.M. also said that T.F., another of M.M.’s
cousins, had entered the home and saw what was going on but that he went to
Appellant’s bedroom and began wrestling with and talking to S.M.              M.M.
remembered the date because it was before she started school, but it was after her
stepsister’s birthday.
      M.M. testified that this was not the first time that Appellant had assaulted
her. On an earlier occasion, Appellant locked her in the bedroom, took off her
pants, and stuck his “private thing” into her vagina. M.M. remembered the timing
of this assault because it occurred just after she received a stuffed animal as a
birthday present from her mother when her mother was released from prison in



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2006. S.M. was in the hallway crying and said to Appellant, “Don’t do it.” M.M.
was six years old; Appellant was thirteen.
       M.M. recalled yet another assault when she was in the living room watching
television with S.M. at her grandparents’ house. When S.M. fell asleep, Appellant
carried S.M. to a bedroom, and he returned to the living room. He took off M.M.’s
pants, got on top of her, put his penis in her vagina, and moved up and down on
her.
       M.M. said that the first time Appellant abused her it hurt, but she did not
know that it was wrong and did not report it. M.M. also said that she did not tell
anyone about the August 2010 assault because she was scared. Appellant had told
her after that assault that he would hurt her if she told anyone. Almost one year
later, M.M. told her sister, K.M., about the assaults, and K.M. immediately told
their mother, D.R. D.R. immediately confronted M.M., who was upset and
embarrassed and cried when she recounted the assault. D.R. contacted Child
Protective Services as well as law enforcement personnel and took M.M. to the
hospital. Janie Mott, a Sexual Assault Nurse Examiner, conducted an exam, and
she found well-healed clefts or healed injuries to M.M.’s hymen that were
consistent with sexual abuse. M.M. was eleven years old at the time.
                                   II. Issue Presented
       Appellant’s single point of error is that he suffered egregious harm when the
trial court erroneously failed to include a Section 8.07(b) limiting instruction in its
jury charge.
                                      III. Analysis
       Section 8.07(b) of the Texas Penal Code contains a provision that a person
may not be prosecuted for or convicted of any offense committed before reaching
seventeen years of age. TEX. PENAL CODE ANN. § 8.07(b) (West 2011). Appellant

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claims that M.M.’s testimony of prior bad acts he allegedly committed before he
reached seventeen years of age, when combined with the lack of a limiting
instruction based upon Section 8.07(b), resulted in egregious harm that deprived
him of a fair trial. The trial court allowed testimony of Appellant’s prior bad acts
for purposes other than to show that Appellant acted in conformity with the
indicted charge. The jury charge contained the following limiting instruction:
             The Defendant is on trial solely on the charge contained in the
      indictment. In reference to evidence, if any, that the Defendant has
      engaged in transactions or acts other than that which is charged by
      indictment in this case, you are instructed that you cannot consider
      such other transactions or acts, if any, for any purpose unless you first
      find and believe beyond a reasonable doubt that the Defendant
      engaged in said transactions or acts, if any, and even then, you may
      only consider said evidence for the following purposes: determining
      intent, identity, motive, opportunity, plan, preparation, or absence of
      mistake or accident, if it does; and for the purpose of determining the
      state of mind of the Defendant and the child, or the previous and
      subsequent relationship between the Defendant and the child, if any.

See TEX. R. EVID. 404(b); TEX. CODE CRIM. PROC. ANN. art. 38.37 (West Supp.
2012). The trial court instructed the jury that it could only convict Appellant of the
charged offense and could use prior bad acts or wrongs to determine intent,
identity, motive, opportunity, plan, preparation, or absence of mistake or accident
only if it found beyond a reasonable doubt that Appellant had committed those
prior bad acts or wrongs. The trial court also gave the same instruction concerning
the use of such evidence to determine Appellant’s or M.M’s state of mind or their
previous and subsequent relationship.
      Article 36.14 of the Texas Code of Criminal Procedure outlines the
requirements and procedures that a trial court must use in its jury charge. TEX.
CODE CRIM. PROC. ANN. art. 36.14 (West 2007). The trial court shall deliver a
written charge to the jury that distinctly sets forth the law applicable to the case.
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Id. Before that charge is read to the jury, defense counsel shall have a reasonable
time to examine the charge and present objections. Id. Article 36.14 imposes no
duty on trial courts to sua sponte instruct the jury on unrequested defensive issues,
which are “strategic” decisions left to defense counsel.          Taylor v. State, 332
S.W.3d 483, 487 (Tex. Crim. App. 2011) (citing Posey v. State, 966 S.W.2d 57, 62
(Tex. Crim. App. 1998)).
       However, a Section 8.07(b) instruction is a statement of the law applicable
to the case and is not an “unrequested defensive issue” or a “mistake-of-fact”
instruction—it pertains to the prohibition of prosecutions and convictions based on
offenses committed prior to reaching seventeen years of age. Taylor, 332 S.W.3d
at 487–88. As the “law applicable to the case,” the trial court is required sua
sponte to give this instruction if it is not requested by defense counsel. Taylor, 332
S.W.3d at 488–89 (citing Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App.
2007)). The trial court erred when it omitted the Section 8.07(b) instruction.
                                 IV. Harm Analysis
      We will reverse the trial court’s judgment when the record indicates that
there was an error in the jury charge and that the error injured Appellant’s rights or
deprived him of a fair and impartial trial. TEX. CODE CRIM. PROC. ANN. art. 36.19
(West 2006); Taylor, 332 S.W.3d at 486. If a defendant fails to object to the jury
charge, as Appellant failed to do in this case, we review the trial record for
fundamental error. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1985). We review the entire jury charge; the state of the evidence, including the
contested issues and weight of the probative evidence; the arguments of counsel;
and any other relevant information to determine whether the defendant suffered
egregious harm that deprived him of a fair and impartial trial.



                                          5
       Errors that result in egregious harm are those that affect the “very basis of
the case, deprive the defendant of a valuable right, vitally affect the defensive
theory, or make a case for conviction clearly and significantly more persuasive.”
Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at 172–73); see Hutch v.
State, 922 S.W.2d 166, 172 (Tex. Crim. App. 1996). The harm must be “actual,”
not just theoretical. Almanza, 686 S.W.2d at 174. We determine egregious harm
on a “case by case” basis. Hutch, 922 S.W.2d at 172; Almanza, 686 S.W.2d at
171.
       Evidence may be inadmissible for one purpose, but admissible for another
purpose. TEX. R. EVID. 105(a). If evidence is admissible for one purpose, but not
another, the court, when requested, will restrict the evidence to its proper scope
and instruct the jury on the proper use of the evidence. Rankin v. State, 974
S.W.2d 707, 712 (Tex. Crim. App. 1996). A defendant is usually entitled to an
instruction limiting the jury’s use of an extraneous offense in the jury charge.
Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001); Rankin, 974
S.W.2d at 711. But evidence of other crimes, wrongs, or acts committed by the
defendant against the child who is the victim of the alleged offense shall be
admitted for its bearing on relevant matters, including (1) the state of mind of the
defendant and the child and (2) the previous and subsequent relationship between
the defendant and the child. CRIM. PROC. art. 38.37. The State also may use other
crimes, wrongs, or acts to show proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident. TEX. R. EVID. 404(b).
       Testimony from the victim alone is sufficient to convict Appellant of the
charged offense. TEX. CODE CRIM. PROC. ANN. art. 38.07(a) (West Supp. 2012);
Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978); Quincy v. State, 304
S.W.3d 489, 497 (Tex. App.—Amarillo 2009, no pet.); Benton v. State, 237

                                         6
S.W.3d 400, 404 (Tex. App.—Waco 2007, pet. ref’d). The jury is the factfinder
that decides disputed facts and evaluates a witness’s veracity and credibility.
Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); see also
Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (noting an appellate court
must give deference to the jury’s determination of the weight and credibility of
witness testimony). A jury may believe or disbelieve any or all of a witness’s
testimony. Lackey v. State, 819 S.W.2d 111, 116 (Tex. Crim. App. 1989). We will
defer to the factfinder and will not substitute our judgment for that of the jury.
Jackson v. Virginia, 443 U.S. 307, 318 (1979); Brooks v. State, 323 S.W.3d 893,
905 (Tex. Crim. App. 2010).
      The jury heard evidence that Appellant took off M.M.’s clothes and put his
penis in her vagina after S.M. had come home from school one day. M.M. said
that she cried and asked Appellant to stop, but he refused and responded, “I know
you like this, I know you do.” M.M. said she saw a white substance come out of
his penis and onto his pants. M.M. testified that her cousin, T.F., came to the
house and saw Appellant sexually abusing M.M. but did nothing about it. T.F.
denied seeing anything. The jury also heard testimony from D.R. that K.M. had
told her about the abuse after M.M. confided to her sister, K.M. D.R. confronted
M.M., who was embarrassed, crying, and upset when she had to confirm what she
had told K.M. D.R. took M.M. to a hospital where a SANE exam revealed well-
healed clefts or healed injuries to M.M.’s hymen consistent with sexual abuse.
      The defense vigorously contended that Appellant was never left alone with
M.M. and that the grandparents never left M.M. or S.M. alone with Appellant.
S.M., M.M., and their grandmother testified that S.M. and M.M. were never left
alone with Appellant and that, if they were home alone, they would go to their



                                         7
bedrooms and lock the door. The jury also heard evidence of Appellant’s prior
assaults upon M.M.
      The trial court instructed the jury that, unless it unanimously found beyond a
reasonable doubt that Appellant had committed the acts that occurred prior to his
seventeenth birthday, the evidence could not be considered to determine intent,
identity, motive, opportunity, plan, preparation, or absence of mistake or accident
or to determine the state of mind of the defendant and the child or the previous and
subsequent relationship between defendant and the child. The evidence pertaining
to these prior offenses was sufficient to allow reasonable jurors to find beyond a
reasonable doubt that Appellant committed the prior offenses.
      After a review of the entire record, including contested issues, trial evidence,
the court’s instructions, counsels’ arguments, and the jury charge, we hold that
Appellant did not suffer egregious harm when the trial court did not provide a
Section 8.07(b) instruction.
                                   V. This Court’s Ruling
   We affirm the judgment of the trial court.




                                                     MIKE WILLSON
                                                     JUSTICE


June 6, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.



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