            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. PD-0937-13



                           BRAXTON MENDOZA, Appellant

                                              v.

                                 THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
              FROM THE ELEVENTH COURT OF APPEALS
                        CALDWELL COUNTY

       K EASLER, J., delivered the opinion of the Court, in which K ELLER, P.J., and
M EYERS, P RICE, W OMACK, H ERVEY, C OCHRAN, and A LCALA, JJ., joined. J OHNSON, J.,
dissented.

                                       OPINION

       The sole issue is whether Braxton Mendoza suffered egregious harm when the trial

court erroneously failed to include in its jury charge a limiting instruction under Texas Penal

Code § 8.07(b) that would have instructed the jury that Mendoza could not be prosecuted for

an offense committed while he was a minor. The court of appeals concluded that Mendoza

did not suffer egregious harm. Although the court of appeals used an incorrect harm
                                                                              MENDOZA—2

analysis, we agree with its conclusion and affirm its judgment.

I. Facts & Procedural History

       Mendoza’s indictment alleged that he committed aggravated sexual assault on August

15, 2010, by penetrating the sexual organ of M.M., a child younger than the age of fourteen

years, with his penis. Mendoza entered a plea of not guilty, and the case was tried to a jury.

       During the trial, testimony centered around a five-year period during which Mendoza

sexually assaulted M.M. on three separate occasions: once in 2006 when M.M. was six and

Mendoza was thirteen, once in 2008 when M.M. was nine and Mendoza was sixteen, and

once in 2010 when M.M. was ten and Mendoza was seventeen. His indictment charged only

the final, 2010 incident.1

       Though Mendoza was not charged with offenses arising out of the first two incidents,

evidence of them was admitted at trial under Texas Rule of Evidence 404(b)2 and Texas

Code of Criminal Procedure article 38.37.3 With respect to the evidence of the first two


       1
         See T EX. P ENAL C ODE § 8.07(b) (providing that “a person may not be prosecuted
for or convicted of any offense committed before reaching 17 years of age except an
offense described by Subsections (a)(1)–(5)”).
       2
         T EX. R. E VID. 404(b) (“Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.”).
       3
          T EX. C RIM. P ROC. C ODE art. 38.37, § 1(b) (“Notwithstanding Rules 404 and 405,
Texas Rules of Evidence, evidence of other crimes, wrongs, or acts committed by the
defendant against the child who is the victim of [a Chapter 21 offense] shall be admitted
for its bearing on relevant matters, including: (1) the state of mind of the defendant and
                                                                               MENDOZA—3

incidents, the trial court gave 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 the 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.

       However, the trial court did not specifically give a § 8.07(b) instruction, which would

have instructed the jury to assess guilt only with respect to the 2010 incident, when Mendoza

was seventeen. Instead, the trial court gave the following instruction regarding proof of the

date of the alleged offense:

       You are instructed that the State is not required to prove the exact date alleged
       in the indictment, but may prove the offense, if any, to have been committed
       at any time prior to the presentment of the indictment. And the date of the
       presentment of the indictment in this cause was the 17th day of August of
       2011.

Mendoza did not object to this instruction, request a § 8.07(b) instruction, or object to the

lack of a § 8.07(b) instruction.

       The jury found Mendoza guilty of aggravated sexual assault, and the court sentenced

Mendoza to seventeen years’ confinement. Mendoza appealed the conviction, arguing that




the child; and (2) the previous and subsequent relationship between the defendant and the
child.”).
                                                                                MENDOZA—4

the trial judge had a sua sponte duty to include a § 8.07(b) limiting instruction, and that

failure to do so caused him egregious harm sufficient to warrant a new trial. The court of

appeals overruled Mendoza’s point of error and affirmed the trial court’s judgment.

II. Court of Appeals’ Opinion

       The court of appeals concluded that the trial court erroneously omitted a § 8.07(b)

limiting instruction. Despite reciting the correct standard articulated in Almanza v. State,4

the lower court did not conduct the appropriate analysis.5 The opinion does not reflect a full

consideration of the four factors that, under the well-settled law, appellate courts should take

into account in a jury-charge harm analysis. Instead, the court of appeals seemingly

conducted a legal-sufficiency analysis, which is not the same as an Almanza analysis.6 The

opinion concludes in its penultimate paragraph that “[t]he evidence . . . was sufficient to

allow reasonable jurors to find beyond a reasonable doubt that Mendoza committed the prior

offenses.”7 We granted review to examine the lower court’s harm analysis.

III. Standard of Review

       Upon a finding of error in the jury charge, there are separate standards of review




       4
           Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g).
       5
      Mendoza v. State, No. 11-12-00206-CR, 2013 WL 2642406, at *3 (Tex.
App.—Eastland Jun. 6, 2013) (mem. op., not designated for publication).
       6
           Id. at *3-*4.
       7
           Id. at *4.
                                                                                MENDOZA—5

depending on whether the defendant timely objected to the jury instructions.8            If the

defendant timely objected to the jury instructions, then reversal is required if there was some

harm to the defendant.9 If the defendant did not timely object to the jury instructions, as is

the case here, then reversal is required only if the error was so egregious and created such

harm that the defendant did not have a fair an impartial trial.10

       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.11 In

examining the record to determine whether charge error is egregious, we consider: (1) the

entirety of the jury charge itself, (2) the state of the evidence, (3) the arguments of counsel,

and (4) any other relevant information revealed by the trial record as a whole.12 Egregious

harm is a difficult standard to meet and such a determination must be made on a case-by-case

basis.13 Neither party bears the burden on appeal to show harm or lack thereof under this

standard.14

IV. Analysis


       8
            Almanza, 686 S.W.2d at 171.
       9
            Id.
       10
            Id.
       11
            Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007).
       12
            Gelinas v. State, 398 S.W.3d 703, 705-706 (Tex. Crim. App. 2013).
       13
            Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).
       14
            Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).
                                                                              MENDOZA—6

       We conclude that a consideration of all relevant factors does not reveal the existence

of egregious harm to Mendoza under the Almanza standard. The omission of a § 8.07(b)

instruction did not affect the very basis of the case, deprive Mendoza of a valuable right, or

vitally affect a defensive theory.15

       A. The Jury Charge

       In addition to the absence of a § 8.07(b) limiting instruction, Mendoza argues that the

language of instruction four—that the State may prove the indicted offense to have been

committed at any time before the presentment of the indictment—affirmatively authorizes

the jury to convict based on the two incidents that occurred before Mendoza’s seventeenth

birthday. We believe that the charge taken as a whole sufficiently directed the jury’s

attention to the charged incident.

       The court instructed the jury that Mendoza was charged with aggravated sexual

assault alleged to have been committed on or about the 15th day of August, 2010. The

charge made no mention of any other dates or incidents. The court instructed the jury that

Mendoza was on trial solely for the charge contained in the indictment, which the jury was

informed several times was only the final, 2010 incident. Furthermore, the charge included

a limiting instruction that explained to the jury what function the evidence of the first two

incidents should serve in its decision: evidence of acts other than those charged should be

considered only for the permissible purposes under Rule of Evidence 404(b) and Code of



       15
            See Stuhler, 218 S.W.3d at 719.
                                                                               MENDOZA—7

Criminal Procedure article 38.37—proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident16 or state of mind of the defendant and

the child and the previous and subsequent relationship between the defendant and the child,17

respectively. The court instructed the jury that Mendoza was guilty only if it believed beyond

a reasonable doubt that he committed aggravated sexual assault on or about the 15th day of

August, 2010. The court instructed the jury that its sole duty was to determine Mendoza’s

guilt or innocence under the indictment in this case.

       A defect in the jury instructions can be mitigated by the context in which it was

presented.18 While the trial court should have given a § 8.07(b) instruction, the charge as a

whole focused the jury on the charged incident and appropriately directly the jury to limit its

consideration of Mendoza’s prior conduct.

       B. The State of the Evidence

       The victim testified that Mendoza sexually assaulted her on three separate occasions

over five years. She provided details at trial about the assaults, including the approximate

dates, times, and words exchanged during the incidents. An exam conducted by a Sexual

Assault Nurse Examiner on the victim revealed healed injuries consistent with the sexual

abuse described. One of the incidents occurred in 2010, after Mendoza’s seventeenth



       16
            T EX. R. E VID. 404(b)
       17
            T EX. C RIM. P ROC. C ODE art. 38.37
       18
            See Gelinas, 398 S.W.3d at 708-709.
                                                                                 MENDOZA—8

birthday. Mendoza presented witnesses at trial who testified that he and the victim were

never home alone. Mendoza testified and denied ever assaulting the victim. The jury found

Mendoza guilty of the only charged count of aggravated sexual assault.

       It is unlikely that the jury believed Mendoza to have sexually assaulted the victim on

the first two occasions before he was seventeen, but disbelieved Mendoza to have sexually

assaulted the victim on the third occasion after he was seventeen.19 Mendoza’s position at

trial was that none of the assaults occurred, rather than that the first two occurred but the last

one did not. The jury would much more likely believe either that all of the assaults occurred

or that none of the assaults occurred. Evidence of the first two incidents was properly

admitted under Texas Rule of Evidence 404(b) and Texas Code of Criminal Procedure 38.37

as evidence for the jury to consider for the enumerated permissible purposes, including the

relationship between Mendoza and the victim.20 The jury could have found that the evidence

of the first two incidents made it more likely that the third incident occurred, and the

evidence of the first two incidents combined with all the other evidence presented in the case

convinced it beyond a reasonable doubt that the third incident occurred.

       Mendoza argues that the relatively graphic nature with which the victim described the

first two incidents compared to the tamer nature with which the victim described the third

might have led the jury to find that the first two incidents did occur, while finding that the



       19
            See Taylor, 332 S.W.3d at 493.
       20
            See T EX. R. E VID. 404(b); see also T EX. C ODE C RIM. P ROC. art. 38.37.
                                                                               MENDOZA—9

third incident did not occur. An examination of the victim’s testimony reveals that all three

incidents were described with equal amounts of detail. Moreover, the victim described the

final attack at the beginning of her testimony, and then testified about the first and second

attacks, drawing the focus of the direct examination to the third. Many of the victim’s

answers to questions about the first and second incidents were that it “happened the same

way” as it did in the final incident, rather than retelling the details.

       There is no indication of egregious harm based on the state of the evidence. In

addition to the jury’s probable understanding that it could only convict on the third incident,

there is no indication that it disbelieved the victim’s testimony only regarding the third

incident but inappropriately convicted on the first two incidents nonetheless.

       C. Arguments of Counsel

       Counsel for Mendoza was the first in closing arguments to bring up the testimony

regarding the assaultive incidents that took place before Mendoza was seventeen. The

defense attorney referred to all three of the incidents in the same manner and did not

emphasize any one over the others. Similarly, the State spent approximately equal time

discussing the three different incidents, grouping them all together for the purpose of arguing

that they actually happened. The State did not encourage the jury to find Mendoza guilty

based on the first two incidents, but instead focused on the last incident: “[h]e was 17 years

old the last time this happened, 13 the first time, 16 the next time, 17 the last time. She was

six, nine and ten. This is not child on child. This was a man, 17-year-old man on a ten-year-
                                                                              MENDOZA—10

old girl.” The State’s focus on the final incident makes this factor weigh against egregious

harm because it made clear to the jury on which incident it could determine guilt.

       D. Other Relevant Information

       Mendoza urges us to consider remarks by the State during jury selection that he

believes weigh in favor of egregious harm.         Specifically, Mendoza argues that “the

prosecutor sought to distance himself from and downplay the ‘on or about’ language of the

indictment” by saying “the law says that if a crime happened around a certain period of time

and the jurors all believe that it was on or about this period of time, that’s good enough.” We

fail to see how this correct statement of the law weighs in favor of egregious harm.

       Moreover, the State during jury selection explained that only when a person is

seventeen can he or she be charged as an adult in Texas. The State explained that crimes

committed by a person under seventeen are handled in juvenile court. The State’s remarks

made during jury selection weigh against egregious harm here because it was made clear to

the jury that seventeen is the age after which individuals can be prosecuted in the district

courts for crimes in Texas. The jury was made well aware that the first two incidents

occurred before Mendoza was seventeen and that the third incident occurred after Mendoza

turned seventeen.

V. Conclusion

       Although we find that the court of appeals used an inappropriate harm analysis, we

hold that it reached the correct conclusion. We hold that the erroneous omission of a §
                                                                       MENDOZA—11

8.07(b) instruction did not egregiously harm Mendoza. The court of appeals’ judgment is

affirmed.




DELIVERED: June 18, 2014

DO NOT PUBLISH
