                     PD-1550-15                                        PD-1550-15
                                                      COURT OF CRIMINAL APPEALS
                                                                      AUSTIN, TEXAS
                                                    Transmitted 11/30/2015 3:21:57 PM
                                                       Accepted 12/1/2015 1:43:18 PM
                   NO. ___________________                             ABEL ACOSTA
                                                                               CLERK

  IN THE COURT OF CRIMINAL APPEALS OF TEXAS




             BRANDON ANDERSON

                             v.

              THE STATE OF TEXAS


              From the Waco Court of Appeals
                 Cause No. 10-14-00182-CR


    APPELLANT BRANDON ANDERSON’S
   PETITION FOR DISCRETIONARY REVIEW


                                  E. Alan Bennett
                                  State Bar #02140700
                                  Counsel for Appellant

                                  Sheehy, Lovelace & Mayfield, P.C.
                                  510 N. Valley Mills Dr., Ste. 500
December 1, 2015                  Waco, Texas 76710
                                  Telephone: (254) 772-8022
                                  Telecopier: (254) 772-9297
                                  Email: abennett@slmpc.com


          ORAL ARGUMENT REQUESTED
               Identity of Judge, Parties and Counsel

     Appellant, pursuant to Rule of Appellate Procedure 68.4(a), provides

the following list of the trial court judge, all parties to the trial court’s

judgment, and the names and addresses of all trial and appellate counsel.


THE TRIAL COURT:

Hon. Patrick H. Simmons                                    Trial Court Judge
77th District Court, Limestone County
P.O. Box 230
Groesbeck, Texas 76642

THE DEFENSE:

Brandon Anderson                                                  Appellant

Chad Morgan                                                    Trial Counsel
109 South Mount Street
Fairfield, Texas 75840

E. Alan Bennett                                           Appellate Counsel
510 North Valley Mills Drive, Suite 500
Waco, Texas 76710




Appellant Thomas Leon Byrd’s PDR                                       Page 2
THE STATE:

Brody Burks                         Trial & Appellate Counsel
Beth Toben
Assistant County Attorneys


Roy DeFriend
County Attorney, Limestone County
200 North State Street, Suite 110
Groesbeck, Texas 76642




Appellant Brandon Anderson’s PDR                       Page 3
                                             Table of Contents

Identity of Judge, Parties and Counsel ................................................................2

Table of Contents ....................................................................................................4

Index of Authorities ................................................................................................6

Statement Regarding Oral Argument ..................................................................8

Statement of the Case .............................................................................................8

Statement of Procedural History ..........................................................................9

Grounds for Review................................................................................................9

Reasons for Granting Review ..............................................................................10

Argument ...............................................................................................................11

  1.   The Waco Court of Appeals Impermissibly Shifted the Burden of
  Proof to Appellant to Disprove an Element of the State’s Case. ................11

      A.      As a Matter of Due Process, the State Must Prove Every Element of
              Its Case Beyond a Reasonable Doubt. ................................................11
      B.      The Family Code Allows Minors to Wed in Two Ways. ................13
      C.      The Waco Court Wrongly Shifted the Burden of Proof to Appellant.
              ..................................................................................................................15
      D.      The Waco Court Violated Appellant’s Right to Due Process. ........16
      E.      The Court Should Grant Review.........................................................17




Appellant Brandon Anderson’s PDR                                                                                        Page 4
   2. Does the age of a child complainant, standing alone, constitute proof
   beyond a reasonable doubt of the complainant’s marital status? ..............19

      A.      Verdicts Must Be Based on Evidence—Not Speculation. ...............19
      B.      The Evidence Regarding Marital Status is Speculative at Best. .....20
      C.      Chavez Should Be Reconsidered. .........................................................21
      D.      The Court Should Grant Review.........................................................22


Prayer ......................................................................................................................24

Certificate of Compliance ....................................................................................25

Certificate of Service .............................................................................................25

Appendix ................................................................................................................26




Appellant Brandon Anderson’s PDR                                                                                     Page 5
                                         Index of Authorities



                                                 Federal Cases

Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) .. 12, 15

In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ............. 11, 21

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) .... 12, 21

Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)12, 16



                                                  Texas Cases

Alexander v. State, 757 S.W.2d 95 (Tex. App.—Dallas 1988, pet. ref’d)... 13, 16

Anderson v. State, 416 S.W.3d 884 (Tex. Crim. App. 2013)...............................20

Anderson v. State, No. 10-14-00182-CR, 2015 WL 6584041 (Tex. App.—Waco
Oct. 29, 2015, pet. filed) ........................................................................... 13, 15, 16

Brown v. State, 112 Tex. Crim. 92, 14 S.W.2d 63 (1929) ....................................21

Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011) ............................... 12, 21

Chavez v. State, 508 S.W.2d 384 (Tex. Crim. App. 1974)............................ 20, 21

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007).......................................20

Lewis v. State, No. 07–99–0058–CR, 1999 WL 989609 (Tex. App.–Amarillo Oct.
25, 1999, no pet.) ....................................................................................................20

Lowry v. State, 692 S.W.2d 86 (Tex. Crim. App. 1985) ............................... 13, 16

Salinas v. State, No. 13–11–00210–CR, 2013 WL 485805 (Tex. App.—Corpus
Christi Feb. 7, 2013, pet. ref'd) .............................................................................20




Appellant Brandon Anderson’s PDR                                                                                Page 6
Tibbets v. State, No. 03-01-00672-CR, 2002 WL 31386096 (Tex. App.—Austin
Oct. 24, 2002, no pet.) ............................................................................................16

Zewoldermariam v. State, 730 S.W.2d 354 (Tex. App.—Dallas 1987, no pet.).20



                                               Texas Statutes

TEX. FAM. CODE § 2.101 .........................................................................................13

TEX. FAM. CODE § 2.102 .........................................................................................13

TEX. FAM. CODE § 2.103 .........................................................................................13

TEX. PEN. CODE § 2.01 ..................................................................................... 12, 21



                                                      Rules

TEX. R. APP. P. 66.3 .............................................................................. 10, 17, 18, 22



                                      Administrative Decisions

Tex. Att’y Gen. Op. No. H-216 (1974) ................................................................13




Appellant Brandon Anderson’s PDR                                                                             Page 7
                 Statement Regarding Oral Argument
      Oral argument will aid the decisional process.       By granting oral

argument, counsel may answer questions posed by the judges regarding the

extent to which the Waco Court of Appeals impermissibly shifted the burden

of proof to Appellant on an element of the State’s case. In addition, oral

argument will allow for a full presentation and thoughtful discussion

regarding the extent to which Jackson v. Virginia impacts this Court’s prior

decision in Chavez. For these reasons and to address any other issues,

Appellant respectfully requests the opportunity to appear and present oral

argument.




                           Statement of the Case

      A jury convicted Appellant three counts of aggravated sexual assault

of a child. The trial court assessed his punishment at 45 years’ imprisonment

on each count.




Appellant Brandon Anderson’s PDR                                       Page 8
                     Statement of Procedural History

      The Waco Court of Appeals affirmed Appellant’s conviction in a

unanimous opinion authored by Justice Scoggins that was handed down

October 29, 2015. No motion for rehearing was filed.




                            Grounds for Review


      1.    The Waco Court of Appeals Impermissibly Shifted the Burden of
            Proof to Appellant to Disprove an Element of the State’s Case.

      2.    Does the age of a child complainant, standing alone, constitute
            proof beyond a reasonable doubt of the complainant’s marital
            status?




Appellant Brandon Anderson’s PDR                                     Page 9
                      Reasons for Granting Review

   The Court should grant discretionary review in this appeal because the

Waco Court of Appeals: (1) has issued a decision that conflicts with another

court of appeals’ decision; (2) has decided important questions of state and

federal law that have not been, but should be, settled by this Court; (3) has

decided important questions of state and federal law in a way that conflicts

with the applicable decisions of this Court and of the Supreme Court of the

United States; and (4) has so far departed from the accepted and usual course

of judicial proceedings as to call for an exercise of this Court's power of

supervision. TEX. R. APP. P. 66.3.




Appellant Brandon Anderson’s PDR                                      Page 10
                                   Argument

1.    The Waco Court of Appeals Impermissibly Shifted the Burden of
      Proof to Appellant to Disprove an Element of the State’s Case.

      Because the offenses alleged occurred before September 1, 2009, the

State had to prove beyond a reasonable doubt that the complainant was not

the spouse of Appellant. Even though the State wholly failed to offer

evidence on this element, the Waco Court of Appeals relied primarily on the

absence of evidence regarding the complainant’s marital status to hold that

the evidence supported a finding on that issue. In other words, the Waco

Court impermissibly shifted the burden of proof to Appellant on the issue

of the complainant’s marital status. This constitutes a blatant violation of

Appellant’s right (grounded in due process) to require the State to prove

every element of its case beyond a reasonable doubt.

A.    As a Matter of Due Process, the State Must Prove Every Element of
      Its Case Beyond a Reasonable Doubt.

      “[T]he Due Process Clause protects the accused against conviction

except upon proof beyond a reasonable doubt of every fact necessary to

constitute the crime with which he is charged.” In re Winship, 397 U.S. 358,

364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). As the Supreme Court clarified nine

years later, the “facts necessary” are the elements of the offense charged.

Appellant Brandon Anderson’s PDR                                       Page 11
Thus, “no person shall be made to suffer the onus of a criminal conviction

except upon sufficient proof—defined as evidence necessary to convince a

trier of fact beyond a reasonable doubt of the existence of every element of

the offense.” Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979) (emphasis added); accord Byrd v. State, 336 S.W.3d 242, 246 (Tex.

Crim. App. 2011).

      The Legislature has codified this constitutional requirement. See TEX.

PEN. CODE § 2.01.

      For this reason, a conviction is obtained in violation of the Due Process

clause when a trial court or appellate court employs some device that shifts

the burden of proof to the defendant on an element of the offense. Sometimes

this occurs via statutory presumptions. See, e.g., Francis v. Franklin, 471 U.S.

307, 313, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) (the reasonable-doubt standard

enunciated in Winship “prohibits the State from using evidentiary

presumptions in a jury charge that have the effect of relieving the State of its

burden of persuasion beyond a reasonable doubt of every essential

element”); Patterson v. New York, 432 U.S. 197, 215, 97 S.Ct. 2319, 53 L.Ed.2d

281 (1977) (State “may not shift the burden of proof to the defendant by




Appellant Brandon Anderson’s PDR                                         Page 12
presuming [an element] upon proof of the other elements of the offense”);

Alexander v. State, 757 S.W.2d 95, 98 (Tex. App.—Dallas 1988, pet. ref’d).

         This Court has found an unconstitutional shifting of the burden of

proof in the criminal non-support statute when it provided for an affirmative

defense of inability to pay even though ability to pay was an element of the

offense. Lowry v. State, 692 S.W.2d 86, 87 (Tex. Crim. App. 1985).

         Here, the Waco Court has relied on inferences that it derived from the

absence of evidence to find sufficient evidence to support an element of the

State’s case. Anderson v. State, No. 10-14-00182-CR, 2015 WL 6584041, at *3-4

(Tex. App.—Waco Oct. 29, 2015, pet. filed). Appellant contends that, when

the court did so, it unconstitutionally shifted the burden of proof to

Appellant via the mechanism of appellate inferences.

B.       The Family Code Allows Minors to Wed in Two Ways.

         Generally, a person cannot marry until he or she is 18. TEX. FAM. CODE

§ 2.101. But there are statutory exceptions.

         First, a person 16 years or older can marry with parental consent. Id. §

2.102.

         And second, a person younger than 18 can petition for a court order to

marry. Id. § 2.103; see also Tex. Att’y Gen. Op. No. H-216 (1974).

Appellant Brandon Anderson’s PDR                                          Page 13
      Under the evidence offered at trial, it can be readily inferred that the

complainant did not marry Appellant under either of the first two

scenarios—she was not 16 (or 18) at the time of the alleged offenses.1

      Appellant argued in the court below (and continues to argue) that,

when the State fails to offer affirmative evidence of a child complainant’s

marital status, 2 the evidence is insufficient to prove that status beyond a

reasonable doubt unless the record demonstrates that none of the

alternatives by which the complainant could have been lawfully married in

fact exist.

      Here, the record is silent regarding whether the complainant and

Appellant were lawfully married by court order. Thus, the State failed to

prove beyond a reasonable doubt that the complainant was not Appellant’s

spouse.




1
      The complainant was 7 years’ old at the time of the alleged offenses.

2
       This issue could be resolved by a simple question, but the State failed to ask that
question and now seek to rely on speculation and guesswork to prove what they failed
to prove at trial.


Appellant Brandon Anderson’s PDR                                                  Page 14
C.    The Waco Court Wrongly Shifted the Burden of Proof to Appellant.

      Ironically, the Waco Court correctly observed that “the State, rather

than Anderson, had the burden of showing that C.G. and Anderson were

not married.” Anderson, 2015 WL 6584041, at *3. But then, the court turned

around and implicitly faulted Appellant for failing to present proof of a court

order issued under section 2.103 of the Family Code. Thus, the Waco Court

concluded in part that, “because the record does not support an inference of

a court order allowing C.G. and Anderson to marry,” a rational factfinder

could have determined beyond a reasonable doubt that she was not his

spouse. Id., 2015 WL 6584041, at *4.

      The Waco Court also relied on (1) the absence of a reference to the

marriage in the complainant’s family tree, and (2) the complainant’s age to

reach this conclusion. Id.

      With regard to the first two factors considered by the Waco Court (lack

of court order and lack of entry in family tree), the court clearly relied on the

absence of evidence of marriage—implicitly placing the burden of proof on

Appellant to prove they were married rather than requiring the State to

prove beyond a reasonable doubt that they were not. This represents an

impermissible shifting of the burden of proof to Appellant. See Francis, 471


Appellant Brandon Anderson’s PDR                                          Page 15
U.S. at 313; Patterson, 432 U.S. at 215; Lowry, 692 S.W.2d at 87; Alexander, 757

S.W.2d at 98.

      The Waco Court cited a decision by the Austin Court of Appeals that

likewise relied on the absence of evidence on this issue and thereby

impermissibly shifted the burden of proof to the appellant. See Anderson,

2015 WL 6584041, at *3 (citing Tibbets v. State, No. 03-01-00672-CR, 2002 WL

31386096, at *6 (Tex. App.—Austin Oct. 24, 2002, no pet.) (evidence sufficient

where “there is no inference in the evidence of any such court order. In fact,

there is no inference of any legal marriage between appellant and the

complainant”). To put it simply, this shifting of the burden of proof to the

appellant on an element of the State’s case violated these appellants’ rights

to due process.

D.    The Waco Court Violated Appellant’s Right to Due Process.

      It is a violation of due process and fundamental fairness for an

appellate court to rely on the absence of evidence to infer that the State

proved an element of its case. Referring to and relying on this absence of

evidence necessarily faults the defense for failing to produce affirmative

evidence on an element of the State’s case. This Court must not condone such

practices.


Appellant Brandon Anderson’s PDR                                         Page 16
      Here, the Waco Court of Appeals did this very thing when it relied on

the absence of evidence of a court order authorizing marriage and the lack

of an entry in the complainant’s family tree regarding any marriage between

them to conclude that the evidence was sufficient to prove Appellant and

the complainant were not married. This constitutes a serious violation of

Appellant’s right to due process as guaranteed by the Fourteenth

Amendment to the United States Constitution.

E.    The Court Should Grant Review.

      The Court should grant review of this issue for most of the reasons

listed in Rule 66.3. See TEX. R. APP. P. 66.3.

      The Waco Court’s decision appears to conflict with the decision of the

Dallas Court in Alexander. Id. 66.3(a).

      The issue of whether an appellate court may infer the lack of a

marriage—an element of the State’s case—from the absence of evidence is

an important question of state and federal law that has not been but should

be decided by this Court. Id. 66.3(b).

      The Waco Court has decided an important question of state and

federal law in a way that appears to conflict with the applicable decisions of

this Court and of the Supreme Court of the United States. Id. 66.3(c).


Appellant Brandon Anderson’s PDR                                         Page 17
      With all due respect, the Waco Court’s decision so far departs from the

accepted and usual course of judicial proceedings as to call for an exercise of

this Court’s power of supervision.3 Id. 66.3(f).

      For each of these reasons, this Court should grant this ground for

discretionary review.




3
       Even if the Court rejects Appellant’s contention set forth in the Second Ground,
the Court must not countenance the impermissible burden-shifting at work in the Waco
Court’s decision. Otherwise, the same result will obtain in the case of a 15-year-old where
the evidence of the complainant’s age is far less persuasive.


Appellant Brandon Anderson’s PDR                                                   Page 18
2.    Does the age of a child complainant, standing alone, constitute proof
      beyond a reasonable doubt of the complainant’s marital status?


      Because the offenses alleged occurred before September 1, 2009, the

State had to prove beyond a reasonable doubt that the complainant was not

the spouse of Appellant. Even though the State wholly failed to offer

evidence on this element, the Waco Court of Appeals held that the

complainant’s age, standing alone, was sufficient to satisfy the State’s

burden of proof. The Waco Court ultimately relied on rank speculation

without any tangible evidence to conclude that the jury could infer from the

complainant’s age alone that she was not Appellant’s spouse. In view of the

State’s failure to offer any evidence on this element, the evidence is legally

insufficient and Appellant is entitled to rendition of a judgment of acquittal.

A.    Verdicts Must Be Based on Evidence—Not Speculation.

      The standard of review for sufficiency of the evidence allows for an

appellate court to presume that the factfinder derived reasonable inferences

from the evidence presented. However, verdicts cannot be upheld on

guesswork and speculation.

      Juries are permitted to draw multiple reasonable inferences from
      the evidence as long as each inference is supported by the
      evidence presented at trial, but they are not permitted to draw


Appellant Brandon Anderson’s PDR                                        Page 19
       conclusions based on speculation. In Hooper, we explained that
       “an inference is a conclusion reached by considering other facts
       and deducing a logical consequence from them. Speculation is
       mere theorizing or guessing about the possible meaning of the
       facts and evidence presented.” While a conclusion that is
       reached by speculation may not be completely unreasonable,
       such conclusion is not sufficiently based upon facts or evidence
       to support a conviction beyond a reasonable doubt.

Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013) (quoting Hooper

v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007)).

B.     The Evidence Regarding Marital Status is Speculative at Best.

       When the Court removes the dross of improper burden-shifting, the

only thing remaining is the complainant’s age. Appellant readily

acknowledges a number of cases in which this Court and others have held

that a complainant’s marital status may be inferred from his or her age.4

While this is admittedly a plausible inference, with all due respect it basically

rewards the State for failing to prove its case when an appellate court derives

this inference. It also flies in the face of this Court’s decisions prohibiting

verdicts based on “mere theorizing or guessing.”



4
        See, e.g., Chavez v. State, 508 S.W.2d 384, 386 (Tex. Crim. App. 1974); Salinas v. State,
No. 13–11–00210–CR, 2013 WL 485805, at *2 (Tex. App.—Corpus Christi Feb. 7, 2013, pet.
ref'd); Lewis v. State, No. 07–99–0058–CR, 1999 WL 989609, at *1 (Tex. App.–Amarillo Oct.
25, 1999, no pet.); Zewoldermariam v. State, 730 S.W.2d 354, 354 (Tex. App.—Dallas 1987,
no pet.).


Appellant Brandon Anderson’s PDR                                                        Page 20
      Appellate courts do not exist to rubber-stamp jury verdicts or play

back-up for the State. Rather, appellate courts are charged with insuring that

the rights of the defendant are scrupulously honored, including the

constitutional requirement that the State prove every element of its case

beyond a reasonable doubt. See Winship, 397 U.S. at 364; Jackson, 443 U.S. at

316; Byrd, 336 S.W.3d at 246; see also TEX. PEN. CODE § 2.01.

      For these reasons, Appellant contends that the Waco Court erred by

holding that the complainant’s age, standing alone sufficed to sustain the

State’s burden of proving beyond a reasonable doubt that the complainant

was not Appellant’s spouse.

C.    Chavez Should Be Reconsidered.

      In Chavez, this Court held (relying on a 1929 decision) that, because the

evidence established that the complainant was 8 years’ old, “no further

testimony would be needed to establish the fact that she was not appellant’s

wife.” Chavez v. State, 508 S.W.2d 384, 386-87 (Tex. Crim. App. 1974) (citing

Brown v. State, 112 Tex. Crim. 92, 14 S.W.2d 63, 67 (1929)). However, the

Court decided Chavez before the Supreme Court’s landmark decision in

Jackson v. Virginia regarding the standard for appellate review for sufficiency




Appellant Brandon Anderson’s PDR                                        Page 21
of the evidence. Therefore, Appellant asks the Court to reconsider Chavez in

view of the Supreme Court’s later holding in Jackson.

D.    The Court Should Grant Review.

      The Court should grant review of this issue for several of the reasons

listed in Rule 66.3. See TEX. R. APP. P. 66.3.

      The issue of whether a child complainant’s age, standing alone, is

sufficient to establish the marital status of the complainant (in view of the

standard announced in Jackson v. Virginia) presents an important question of

state and federal law that has not been, but should be, settled by this Court.

Id. 66.3(b).

      The Waco Court has decided an important question of state and

federal law in a way that appears to conflict with the applicable decisions of

this Court, namely, Anderson and Hooper, and of the Supreme Court of the

United States, namely Winship and Jackson. Id. 66.3(c).

      With all due respect, the Waco Court’s decision so far departs from the

accepted and usual course of judicial proceedings as to call for an exercise of

this Court’s power of supervision, particularly insofar as the Waco Court

failed to address the merits of the complaint. Id. 66.3(f).




Appellant Brandon Anderson’s PDR                                        Page 22
      For each of these reasons, this Court should grant this ground for

discretionary review.




Appellant Brandon Anderson’s PDR                                 Page 23
                                   Prayer

      WHEREFORE,        PREMISES     CONSIDERED,        Appellant    Brandon

Anderson asks the Court to: (1) grant review on the issues presented in this

petition for discretionary review; and (2) grant such other and further relief

to which he may show himself justly entitled.

                                         Respectfully submitted,



                                           /s/ Alan Bennett
                                         E. Alan Bennett
                                         SBOT #02140700
                                         Counsel for Appellant

                                         Sheehy, Lovelace & Mayfield, P.C.
                                         510 N. Valley Mills Dr., Ste. 500
                                         Waco, Texas 76710
                                         Telephone:       (254) 772-8022
                                         Fax:             (254) 772-9297
                                         Email:      abennett@slmpc.com




Appellant Brandon Anderson’s PDR                                       Page 24
                       Certificate of Compliance

      The undersigned hereby certifies, pursuant to Rule of Appellate

Procedure 9.4(i)(3), that this computer-generated document contains 3,627

words.



                                          /s/ Alan Bennett
                                        E. Alan Bennett




                            Certificate of Service

      The undersigned hereby certifies that a true and correct copy of this

brief was served electronically on November 30, 2015 to: (1) counsel for the

State, Brody Burks, brody.burks@co.limestone.tx.us; and (2) the State

Prosecuting Attorney, lisa.mcminn@SPA.texas.gov.



                                          /s/ Alan Bennett
                                        E. Alan Bennett




Appellant Brandon Anderson’s PDR                                     Page 25
                                   Appendix



Opinion of Waco Court of Appeals:

      Anderson v. State, No. 10-14-00182-CR, 2015 WL 6584041 (Tex. App.—
      Waco Oct. 29, 2015, pet. filed)




Appellant Brandon Anderson’s PDR                                 Page 26
                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00182-CR

BRANDON ANDERSON,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                            From the 77th District Court
                             Limestone County, Texas
                              Trial Court No. 13266-A


                          MEMORANDUM OPINION


      In three issues, appellant, Brandon Anderson, challenges his convictions for three

counts of aggravated sexual assault of a child. See TEX. PENAL CODE ANN. § 22.021(a)(2)(B)

(West Supp. 2014). Specifically, Anderson contends that: (1) the evidence is insufficient

to prove the child victim, C.G., was a “child” because the State offered no evidence that

she was not his spouse; (2) the trial court abused its discretion by restricting his cross-

examination of C.G.; and (3) the trial court erred by failing to properly define the terms
“intentionally” and “knowingly” in the jury charge. Because we reject all of Anderson’s

complaints on appeal, we affirm.1

                                 I.      SUFFICIENCY OF THE EVIDENCE

        In his first issue, Anderson argues that the evidence is insufficient to support his

convictions because the State did not proffer any evidence demonstrating that C.G. was

not his spouse, even though the operative statute at the time of the offenses required the

State to do so.

A.      Applicable Law

        In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of

Criminal Appeals expressed our standard of review of a sufficiency issue as follows:

        In determining whether the evidence is legally sufficient to support a
        conviction, a reviewing court must consider all of the evidence in the light
        most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
        Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar
        standard gives full play to the responsibility of the trier of fact fairly to
        resolve conflicts in the testimony, to weigh the evidence, and to draw
        reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at
        319. “Each fact need not point directly and independently to the guilt of
        the appellant, as long as the cumulative force of all the incriminating
        circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d
        at 13.

Id.




        1 As this is a memorandum opinion and the parties are familiar with the facts, we only recite those
facts necessary to the disposition of the case. See TEX. R. APP. P. 47.1, 47.4.

Anderson v. State                                                                                   Page 2
       Our review of "all of the evidence" includes evidence that was properly and

improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if

the record supports conflicting inferences, we must presume that the factfinder resolved

the conflicts in favor of the prosecution and therefore defer to that determination. Jackson,

443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial evidence are

treated equally:    “Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that the factfinder

is entitled to judge the credibility of the witnesses and can choose to believe all, some, or

none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461

(Tex. Crim. App. 1991).

       The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four

things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability; and (4) adequately describes the particular offense for which the

defendant was tried. Id.

B.     Discussion

       The statute referring to aggravated sexual assault—section 22.021 of the Penal

Code—cross references section 22.011(c) of the Penal Code for the definition of “child.”



Anderson v. State                                                                        Page 3
See TEX. PENAL CODE ANN. § 22.011(c) (West 2011); see also id. § 22.021(b)(1). The current

version of section 22.011(c) provides that a “[c]hild” is “a person younger than 17 years

of age.” See id. § 22.011(c). However, it is undisputed that the offenses occurred in 2008

and early 2009 when C.G. was six or seven years old. Therefore, because of the dates of

the alleged offenses, a prior statutory definition of “child” applies. Specifically, under

the predecessor statute to section 22.011(c), “‘[c]hild’ means a person younger than 17

years of age who is not the spouse of the actor.” Act of May 29, 1983, 68th Leg., R.S., ch.

977, § 3, 1983 Tex. Gen. Laws 5311, 5314 (amended 2009) (current version at TEX. PENAL

CODE. ANN. § 22.011(c) (West 2011)). In other words, the State was required in this case

to prove beyond a reasonable doubt that C.G. was not only younger than seventeen years

of age but also that she was not Anderson’s spouse. See id.

       “Spouse” is defined as “a person who is legally married to another.” TEX. PENAL

CODE ANN. § 22.011(c)(2). This statutory provision has been in effect since 1995. See Act

of May 16, 1995, 74th Leg., R.S., ch. 273, § 1, 1995 Tex. Gen. Laws 2611, 2611. But, to

understand how one becomes the spouse of another, we look to several provisions of the

Family Code.

       Generally, one must be at least eighteen years old to marry. See TEX. FAM. CODE

ANN. § 2.101 (West 2006); see also Barton v. State, No. 10-06-00156-CR, 2007 Tex. App.

LEXIS 5685, at *10 (Tex. App.—Waco July 18, 2007, no pet.) (not designated for

publication). However, under section 2.012 of the Family Code, a minor can apply for a


Anderson v. State                                                                    Page 4
marriage license if the applicant is sixteen years of age or older but under eighteen years

of age. See TEX. FAM. CODE ANN. § 2.102(a) (West Supp. 2014); see also Barton, 2007 Tex.

App. LEXIS 5685, at *10.

       Texas law also recognizes informal or “common law” marriages that are proved

by a showing that the parties: (1) entered into an agreement to be married; (2) cohabitated

as a married couple; and (3) held each other out publicly as spouses. See TEX. FAM. CODE

ANN. § 2.401(a)(2) (West 2006); see also Kingery v. Hintz, 124 S.W.3d 875, 877 (Tex. App.—

Houston [14th Dist.] 2003, pet. ref’d). “However, there is a crucial prerequisite; both

parties must possess the legal capacity to marry.” Kingery, 124 S.W.3d at 877 (citing

Villegas v. Griffin Indus., 975 S.W.2d 745, 749-50 (Tex. App.—Corpus Christi 1998, pet.

denied)); see also TEX. FAM. CODE ANN. § 2.401(c)(1) (stating that a person under the age

of eighteen may not be a party to an informal marriage).

       Finally, under section 2.103 of the Family Code, “[a] minor may petition the court

in the minor’s own name for an order granting permission to marry.” TEX. FAM. CODE

ANN. § 2.103(a) (West Supp. 2014). “If after a hearing the court, sitting without a jury,

believes marriage to be in the best interest of the minor, the court, by order, shall grant

the minor permission to marry.” Id. § 2.103(f).

       On appeal, Anderson concedes that the only marriage option that applies in this

case is the one provided by section 2.103. Specifically, Anderson argues that this Court’s

decision in Barton is wrong because it failed to consider the possibility of an underage


Anderson v. State                                                                    Page 5
child getting married under section 2.103.2 Additionally, Anderson asserts that the

evidence supporting his conviction is insufficient because the State did not proffer any

evidence regarding C.G.’s marital status, and because C.G. and Anderson could have

been married under section 2.103.

        At trial, the State did not elicit any testimony as to whether C.G. and Anderson

were married at the time of the incidents. Anderson testified that he was married to April

Michelle Davis at the time of trial and that he met April “sometime in 2009”; however,

the State did not elicit any testimony as to whether Anderson was married at the time of

the incidents or if he had been previously married. In any event, the record did include

a family tree that showed all of the marital and child-bearing relationships in the family.

The family tree specifically showed that C.G. and Anderson are fourth cousins, once

removed. Moreover, the family tree did not show any direct link between C.G. and

Anderson that would have existed had the two been married at some point.




        2  Given that the Court of Criminal Appeals and many of our sister courts have held that evidence
that child victims are under the age of sixteen at the time of the events that form the basis of the offense is
sufficient to circumstantially prove that appellant is not married to the child victim, we are not persuaded
to overrule this Court’s decision in Barton. See Chavez v. State, 508 S.W.2d 384, 386 (Tex. Crim. App. 1974);
Strahan v. State, 306 S.W.3d 342, 348 (Tex. App.—Fort Worth 2010, pet. ref’d); Rodriguez v. State, 939 S.W.2d
211, 217-18 (Tex. App.—Austin 1997, no pet.); Meyers v. State, 737 S.W.2d 6, 8-9 (Tex. App.—Corpus Christi
1987, no pet.); Zewoldermariam v. State, 730 S.W.2d 354, 354 (Tex. App.—Dallas 1987, no pet.); see also Salinas
v. State, No. 13-11-00210-CR, 2013 Tex. App. LEXIS 1130, at *4 (Tex. App.—Corpus Christi Feb. 7, 2013, pet.
ref’d) (mem. op. not designated for publication); Barton v. State, No. 10-06-00156-CR, 2007 Tex. App. LEXIS
5685, at *10 (Tex. App.—Waco July 18, 2007, no pet.) (not designated for publication); Tibbetts v. State, No.
03-01-00672-CR, 2002 Tex. App. LEXIS 7548, at **18-19 (Tex. App.—Austin Oct. 24, 2002, no pet.) (not
designated for publication); Lewis v. State, No. 07-99-0058-CR, 1999 Tex. App. LEXIS 7949, at *2 (Tex. App.—
Amarillo Oct. 25, 1999, no pet.) (not designated for publication).

Anderson v. State                                                                                      Page 6
       While we recognize that the State, rather than Anderson, had the burden of

showing that C.G. and Anderson were not married at the time of the incidents, it is

noteworthy that the record does not contain any evidence or mentioning of a possible

court order allowing C.G. and Anderson to marry. See Alexander v. State, 757 S.W.3d 95,

98 (Tex. App.—Dallas 1988, pet. ref’d) (“Because the State must prove each element of the

offense beyond a reasonable doubt, it may not shift the burden of proof to the defendant

by presuming one element upon proof of the other elements of the offense.”); see also

Tibbetts v. State, No. 03-01-00672-CR, 2002 Tex. App. LEXIS 7548 at **20-21 (Tex. App.—

Austin Oct. 24, 2002, no pet.) (not designated for publication) (concluding that a rational

factfinder could have found beyond a reasonable doubt that the complainant was not the

spouse of appellant where the record did not contain an inference of a court order

allowing a minor-applicant to get married, nor an “inference of any legal marriage

between appellant and the complainant—ceremonial, common law, or (informal under

the Family Code)”).

       Therefore, because the record does not support an inference of a court order

allowing C.G. and Anderson to marry, the family tree did not show that C.G. and

Anderson were married, and because C.G. was seven years old at the time of the

incidents, we believe that a rational factfinder could have found that C.G. was not

Anderson’s spouse at the time of the incidents beyond a reasonable doubt. See Strahan v.

State, 306 S.W.3d 342, 348 (Tex. App.—Fort Worth 2010, pet. ref’d) (holding that because


Anderson v. State                                                                    Page 7
the victim was ten years old at the time of the offense and made an outcry that “her dad”

was raping her, the evidence was sufficient to establish that she was not married to him);

Rodriguez v. State, 939 S.W.2d 211, 217-18 (Tex. App.—Austin 1997, no pet.); Meyers v.

State, 737 S.W.2d 6, 8-9 (Tex. App.—Corpus Christi 1987, no pet.); Zewoldermariam v. State,

730 S.W.2d 354, 354 (Tex. App.—Dallas 1987, no pet.) (“However, the complainant was

eleven years old; this is sufficient to establish that she was not his wife.” (citing Chavez v.

State, 508 S.W.2d 384, 386 (Tex. Crim. App. 1974) (“The proof in this case showing the

prosecutrix to be the tender age of 8 years, no further testimony would be needed to

establish the fact that she was not appellant’s wife.”))); see also Salinas v. State, No. 13-11-

00210-CR, 2013 Tex. App. LEXIS 1130, at *4 (Tex. App.—Corpus Christi Feb. 7, 2013, pet.

ref’d) (mem. op. not designated for publication) (“All four of the minor victims in this

case . . . testified for the State without contradiction that they were below the age of

sixteen at the time of the events that form the bases of the offenses. We agree with the

Court of Criminal Appeals, our sister courts, and our own precedent that this fact alone

is sufficient to circumstantially prove that appellant was not married to any of them.”);

Tibbetts, 2002 Tex. App. LEXIS 7548, at **18-19 (noting that circumstantial evidence may

be used to prove that a complainant was not the spouse of the defendant in an

aggravated-sexual-assault-of-a-child case); Lewis v. State, No. 07-99-0058-CR, 1999 Tex.

App. LEXIS 7949, at *2 (Tex. App.—Amarillo Oct. 25, 1999, no pet.) (not designated for

publication) (“Testimony revealed that the victim was only seven years old when


Anderson v. State                                                                        Page 8
appellant sexually assaulted her. That alone constituted sufficient evidence upon which

a rational jury could have found beyond a reasonable doubt that the appellant and his

victim of tender years were not husband and wife.”). Accordingly, we hold that the

evidence supporting Anderson’s conviction is sufficient. See Lucio, 351 S.W.3d at 894. We

overrule Anderson’s first issue.

                          II.      THE CROSS-EXAMINATION OF C.G.

       In his second issue, Anderson contends that the trial court abused its discretion by

restricting his cross-examination of C.G. In particular, Anderson complains that the trial

court improperly sustained the State’s relevance objection during his questioning of C.G.

regarding whom she was playing with on the evening of the first alleged instance of

sexual assault.

A.     Standard of Review

       We review the trial court’s admission or exclusion of evidence for an abuse of

discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). The trial court

has broad discretion in determining the proper outcry witness, and its determination will

not be disturbed absent an abuse of discretion. Sims v. State, 12 S.W.3d 499, 500 (Tex.

App.—Dallas 1999, pet. ref’d) (citing Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App.

1990); Schuster v. State, 852 S.W.2d 766, 768 (Tex. App.—Fort Worth 1993, pet. ref’d)). If

the trial court’s ruling is within the zone of reasonable disagreement, there is no abuse of

discretion. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). We consider the

ruling in light of what was before the trial court at the time the ruling was made and

Anderson v. State                                                                     Page 9
uphold the trial court’s decision if it lies within the zone of reasonable disagreement.

Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009).

B.     Applicable Law

       The Confrontation Clause of the Sixth Amendment to the United States

Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI. This

procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380

U.S. 400, 403, 85 S. Ct. 1065, 1067-68, 13 L. Ed. 2d 923 (1965); De La Paz v. State, 273 S.W.3d

671, 680 (Tex. Crim. App. 2008).

       The Sixth Amendment protects the defendant’s right not only to confront the

witnesses against him, but to cross-examine them as well. See Davis v. Alaska, 415 U.S.

308, 316, 94 S. Ct. 1105, 1110, 39 L. Ed. 347 (1974). “The exposure of a witness’ motivation

in testifying is a proper and important function of the constitutionally protected right of

cross-examination.” Davis, 415 U.S. at 316-17; 94 S. Ct. at 1110. The accused is entitled to

great latitude to show a witness’ bias or motive to falsify his testimony. See Hodge v. State,

631 S.W.2d 754, 758 (Tex. Crim. App. [Panel Op.] 1982).

       However, the right of cross-examination is not unlimited. The trial court retains

wide latitude to impose reasonable limits on cross-examination. See Delaware v. Van

Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 1434-35, 89 L. Ed. 674 (1986). The trial court

must carefully consider the probative value of the evidence and weigh it against the risks

of admission. See Hodge, 631 S.W.2d at 758. These potential risks include “the possibility

of undue prejudice, embarrassment or harassment to either a witness or a party, the

Anderson v. State                                                                       Page 10
possibility of misleading or confusing a jury, and the possibility of undue delay or waste

of time.” Id.; see Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000); see also Chambers

v. State, 866 S.W.2d 9, 27 (Tex. Crim. App. 1993). Moreover, “the Confrontation Clause

guarantees an opportunity for effective cross-examination, not cross-examination that is

effective in whatever way, or to whatever extent, the defense might wish.” Delaware v.

Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294, 88 L. Ed. 15 (1985) (emphasis in original); see

Walker v. State, 300 S.W.3d 836, 844-45 (Tex. App.—Fort Worth 2009, pet. ref’d).

       With regard to the wide latitude afforded trial judges in limiting cross-

examination, the Court of Criminal Appeals has explained:

       This latitude is exceeded only when the trial court exercises its discretion to
       so drastically curtail the defendant’s cross-examination as to leave him
       unable to make the record from which to argue why [the witness] might
       have been biased or otherwise lacked that degree of impartiality expected
       of a witness at trial. This kind of trial-court error is most conspicuous, of
       course, when the trial court entirely forecloses the defense from exposing—
       prohibits all inquiry into—a prototypical form of bias. But it may also be
       subtler, such as when the only record-making permitted the defense is so
       circumscribed that a reasonable jury might have received a significantly
       different impression of [the witness’s] credibility had [the defendant’s]
       counsel been permitted to pursue his proposed line of cross-examination.

Johnson v. State, 433 S.W.3d 546, 555 (Tex. Crim. App. 2014) (internal citations &

quotations omitted).

C.     Discussion

       At trial, C.G., who was thirteen years old at the time of trial, testified about

multiple incidents of sexual abuse allegedly perpetrated by Anderson.               On cross-

examination, Anderson questioned C.G. about the events leading up to the first alleged



Anderson v. State                                                                        Page 11
sexual assault that occurred at night in the trailer where C.G. lived. Anderson’s counsel

established that C.G. was seven years old at the time of the first incident, even though

C.G. testified on direct examination that the incident transpired when she was six years

old. Next, Anderson’s counsel questioned C.G. about who slept in the trailer on the night

of the first assault, who lived in the trailer, and where each person slept. For further

clarification, Anderson’s counsel had C.G. draw a picture of the configuration of the

trailer. Anderson’s counsel then asked C.G. if the assault took place during the school

year or during the summer. C.G. could not remember. C.G. also could not remember

whether it was hot or cold outside on the night of the assault. Additionally, Anderson’s

counsel also questioned C.G. about whether she took a bath or shower that night, if she

braided her hair that day or wore it down, what clothes she wore, what type of wallpaper

was in the trailer, whether the windows to the trailer were covered, and what type of

sheet or blanket she used in the bed. All of these questions were designed to gauge C.G.’s

recollection of details on the day and night of the first assault. C.G. could not recall some

of the details referenced in the questions.

       Later, when asked what Anderson was doing around the trailer that day, C.G.

stated that she could not remember because she “wasn’t around him.” When asked to

clarify, C.G. testified that she “was outside playing.” Thereafter, Anderson’s counsel

asked who C.G. was playing with that day. The State objected on relevancy grounds, and

the trial court sustained the State’s objection.


Anderson v. State                                                                     Page 12
        A review of the record shows that Anderson’s counsel asked numerous questions

of C.G. to establish her recollection of details on the day and night of the first assault. It

is not the case that Anderson was foreclosed from inquiring about C.G.’s memory of the

day and night in question. As stated earlier, C.G. could not recall some of the details

referenced in those questions. On appeal, Anderson asserts that he should have been

able to question C.G. about whom she was playing with because the testimony of those

children, if any, could have discredited C.G.’s testimony. However, C.G.’s answers to the

numerous questions posed by Anderson’s counsel established that she could not recall

some of the details leading up to the first assault. Thus, any testimony from C.G.’s

playmates on the day in question would have bolstered that which was already

established—that C.G. could not remember all of the details leading up to the first

assault.3    Furthermore, there is no indication in the record that C.G.’s purported

playmates slept over on the night in question so that they could offer testimony about the

sexual assault itself. We therefore conclude that this line of questioning was unnecessary,

irrelevant, and, if allowed, would have caused undue delay. See TEX. R. EVID. 401

(providing that evidence is relevant if it has any tendency to make more probable or less




        3 To the extent that it can be argued that this line of questioning was relevant, we believe that
counsel’s questions were an attempt to bolster that which was already established—the fact that C.G. could
not remember all of the details leading up to the first assault. Accordingly, the trial court could have
excluded the testimony under Texas Rule of Evidence 403, which allows for the exclusion of relevant
evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of
cumulative evidence.” See TEX. R. EVID. 403.

Anderson v. State                                                                                   Page 13
probable the existence of a consequential fact); Webb v. State, 991 S.W.2d 408, 418 (Tex.

App.—Houston [14th Dist.] 1999, no pet.) (noting that “[i]f the trial court determines the

evidence is irrelevant, the evidence is absolutely inadmissible and the trial court has no

discretion to admit it” and that “[q]uestions of relevance should be left largely to the trial

court and will not be reversed absent an abuse of discretion”); see also Van Arsdall, 475

U.S. at 678, 106 S. Ct. at 1434-35; Lopez, 18 S.W.3d at 222; Chambers, 866 S.W.2d at 27.

Accordingly, we cannot say that the trial court abused its discretion in sustaining the

State’s objection and thereby excluding this line of questioning. See De La Paz, 279 S.W.3d

at 343; Prible, 175 S.W.3d at 731. We overrule Anderson’s second issue.

                                   III.   THE JURY CHARGE

       In his third issue, Anderson argues that the trial court erred by failing to properly

define the terms “intentionally” and “knowingly” in the jury charge.             Specifically,

Anderson asserts that the charge definitions of “intentionally” and ‘knowingly” were not

properly limited in accordance with the offenses charged—aggravated sexual assault of

a child, a conduct-oriented offense.

A.     Applicable Law

       In reviewing a jury-charge issue, an appellate court’s first duty is to determine

whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.

App. 1996). If error is found, the appellate court must analyze that error for harm.

Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was properly



Anderson v. State                                                                      Page 14
preserved by objection, reversal will be necessary if the error is not harmless. Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was not preserved

at trial by a proper objection, a reversal will be granted only if the error presents egregious

harm, meaning appellant did not receive a fair and impartial trial. Id. To obtain a reversal

for jury-charge error, appellant 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).

       The record reflects that Anderson did not object to the jury charge; thus, he must

show egregious harm. See Almanza, 686, S.W.2d at 171. In examining the record for

egregious harm, we consider the entire jury charge, the state of the evidence, the final

arguments of the parties, and any other relevant information revealed by the record of

the trial as a whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). 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).

B.     Discussion

       Here, the State concedes that the jury charge did not properly limit the definitions

of “intentionally” and “knowingly”; therefore, we must determine whether the error in

the charge egregiously harmed Anderson. In doing so, we consider the entire jury charge,


Anderson v. State                                                                       Page 15
the state of the evidence, the final arguments of the parties, and any other relevant

information revealed by the record. See Olivas, 202 S.W.3d at 144.

        1.        The Entire Jury Charge

        In the definitions portion of the jury charge, the trial court defined “intentionally”

and “knowingly” as follows:

        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 when he is aware of the nature of his conduct. A
        person acts knowingly, or with knowledge, with respect to a result of his
        conduct when he is aware that his conduct is reasonably certain to cause
        the result.

However, in the application portion of the charge, the trial court correctly limited the

culpable mental states to their relevant conduct elements as to each count. 4 See Gonzales

v. State, 304 S.W.3d 838, 848 (Tex. Crim. App. 2010) (stating that aggravated sexual assault

is a conduct-oriented offense); see also Reed v. State, 412 S.W.3d 24, 28-29 (Tex. App.—

Waco 2013, pet. ref’d) (“This Court has stated that aggravated sexual assault is a conduct-



        4   For Count 1, the application portion of the jury charge provided the following:

        Now, if you find from the evidence beyond a reasonable doubt that on or about the 14th
        day of February, 2008, in Limestone County, Texas, the Defendant, Brandon Anderson, did
        then and there, intentionally or knowingly, cause the sexual organ of [C.G.] to be
        penetrated by the finger of the Defendant, and at the time, [C.G.] was a child who was then
        and there younger than fourteen (14) years of age, then you will find the Defendant guilty
        of Aggravated Sexual Assault of a Child, as charged in Count 1 of the indictment.

The application instructions for Counts 2 and 3 were substantially similar to the one provided for Count 1.

Anderson v. State                                                                                     Page 16
oriented offense in which the focus of the offense is on whether the defendant acted

intentionally or knowingly with respect to the nature of his conduct rather than the result

of his conduct.”).

       The Court of Criminal Appeals has held that an error in the abstract portion of the

jury charge is not egregious where the application paragraph correctly instructs the jury.

Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); see Patrick v. State, 906 S.W.2d

481, 493 (Tex. Crim. App. 1995); see also Davis v. State, No. 05-13-00200-CR, 2014 Tex. App.

LEXIS 4778, at *33 (Tex. App.—Dallas May 1, 2014, pet. ref’d) (not designated for

publication) (“Where the application paragraph of the charge correctly instructs the jury

on the law applicable to the case, this mitigates against a finding that error in the abstract

portion of the jury charge was egregious.”). Furthermore, the inclusion of merely

superfluous abstraction never produces reversible error in the court’s charge because it

has no effect on the jury’s ability to implement fairly and accurately the commands of the

application paragraph or paragraphs. See Plata v. State, 926 S.W.2d 300, 302-03 (Tex. Crim.

App. 1996), overruled on other grounds by Malik, 953 S.W.2d at 234; see also Garcia v. State,

No. 10-14-00028-CR, 2015 Tex. App. LEXIS 2175, at **5-6 (Tex. App.—Waco Mar. 5, 2015,

pet. ref’d) (mem. op., not designated for publication). Because the application portion of

the jury charge in this case correctly tailored the culpable-mental-state definitions to

relate specifically to Anderson’s conduct and not the result, we cannot say that this factor

weighs in favor of a finding of egregious harm. See Gelinas v. State, 398 S.W.3d 703, 710


Anderson v. State                                                                      Page 17
(Tex. Crim. App. 2013) (noting that the Almanza analysis “is a fact specific one which

should be done on a case-by-case basis”); Olivas, 202 S.W.3d at 144; Medina, 7 S.W.3d at

640; Plata, 926 S.W.2d at 302-03; see also McCarty v. State, No. 10-13-00066-CR, 2013 Tex.

App. LEXIS 12407, at *7 (Tex. App.—Waco Oct. 3, 2013, pet. ref’d) (mem. op., not

designated for publication) (declining to find that appellant was egregiously harmed

because “the application paragraph of the charge served to limit the culpable mental

states to their relevant conduct elements”).

       2.      The State of the Evidence

       In arguing that the State’s case was weak, Anderson asserts that he vigorously

contested the State’s evidence with evidence of other explanations for the allegations.

Additionally, Anderson argued that the total lack of physical evidence to corroborate the

allegations and the fact that the jury took nearly five hours to reach a verdict further

indicates the weakness of the State’s case.

       We are not persuaded by Anderson’s arguments. It is well-established that a child

victim’s testimony alone is sufficient to support a conviction for aggravated sexual

assault of a child. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2014); see also

Cantu v. State, 366 S.W.3d 771, 775 (Tex. App.—Amarillo 2012, no pet.); Abbott v. State, 196

S.W.3d 334, 341 (Tex. App.—Waco 2006, pet. ref’d); Tear v. State, 74 S.W.3d 555, 560 (Tex.

App.—Dallas 2002, pet. ref’d). Furthermore,

       courts will give wide latitude to testimony given by child victims of sexual
       abuse. The victim’s description of what happened need not be precise, and

Anderson v. State                                                                     Page 18
       the child is not expected to communicate with the same level of
       sophistication as an adult. Corroboration of the victim’s testimony by
       medical or physical evidence is not required.

Cantu, 366 S.W.3d at 776 (internal citations omitted).

       Here, C.G. testified about multiple incidents of sexual assault perpetrated by

Anderson.     To the extent that other evidence presented at trial conflicts with the

testimony of C.G., we note that a jury may believe all, some, or none of any witness’s

testimony. See Chambers, 805 S.W.2d at 461. And by finding Anderson guilty, the jury

obviously believed C.G.’s version of the incidents, and we are to defer to the jury’s

resolution of such conflicts in the evidence. See id.; see also Lancon v. State, 253 S.W.3d 699,

706 (Tex. Crim. App. 2008). As such, based on C.G.’s testimony, Anderson’s convictions

are supported by sufficient evidence. See TEX. CODE CRIM. PROC. ANN. art. 38.07; see also

Lucio, 351 S.W.3d at 894; Cantu, 366 S.W.3d at 775-76. Therefore, we cannot say that this

factor weighs in favor of egregious harm. See Gelinas, 398 S.W.3d at 710; see also Olivas,

202 S.W.3d at 144.

       3.      Final Arguments

       With respect to final arguments, neither party focused on the culpable mental

states. Instead, the arguments of the parties centered on whether the assaults occurred at

all. Anderson concedes that this factor does not weigh in favor of egregious harm. See

Gelinas, 398 S.W.3d at 709; see also Olivas, 202 S.W.3d at 144.

       4.      Other Relevant Information


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       Finally, Anderson asserts that this case presents unique circumstances that

support a finding of egregious harm.         However, we have already addressed the

circumstances mentioned by Anderson—namely, the tailoring of the definitions of

“intentionally” and “knowingly.” Because Anderson does not raise any new information

that is relevant to this factor, we cannot say that this factor weighs in favor of egregious

harm. See Gelinas, 398 S.W.3d at 709; see also Olivas, 202 S.W.3d at 144.

       5.      Summary

       Based on the foregoing, we do not find any of the Olivas factors to weigh in favor

of egregious harm in this case. See 202 S.W.3d at 144. We therefore cannot conclude that

the error in failing to limit the culpable mental states in the abstract portion of the jury

charge resulted in egregious harm to Anderson. See id.; see also Almanza, 686 S.W.2d at

171. Accordingly, we overrule Anderson’s third issue.

                                     IV.    CONCLUSION

       Having overruled all of Anderson’s issues on appeal, we affirm the judgment of

the trial court.




                                                 AL SCOGGINS
                                                 Justice




Anderson v. State                                                                    Page 20
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 29, 2015
Do not publish
[CRPM]




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