Opinion filed August 31, 2018




                                           In The


           Eleventh Court of Appeals
                                       __________

                                 No. 11-16-00258-CR
                                     __________

                            JOSEPH SIEDL, Appellant
                                              V.
                       THE STATE OF TEXAS, Appellee


                      On Appeal from the 104th District Court
                              Taylor County, Texas
                          Trial Court Cause No. 20078B


                       MEMORANDUM OPINION
       A jury found Appellant, Joseph Siedl,1 not guilty of continuous sexual abuse
of a child but guilty of the lesser included offenses of aggravated sexual assault of a
child under the age of fourteen and three counts of indecency with a child by contact.
See TEX. PENAL CODE ANN. § 22.021(a)(1)(A), (a)(2)(B) (West Supp. 2017).
Punishment was assessed by the jury at twenty years for the count of aggravated
sexual assault and two years, seven years, and ten years for the three counts of

       1
        We note that the name on the indictment is “Joseph Siedl” but that the judgments contain
Appellant’s full name, “Joseph Joe Siedl.”
indecency with a child by contact. In three issues, Appellant asserts the trial court
erred in charging the jury (1) that it could convict Appellant of aggravated sexual
assault of a child even if the victim was fourteen years of age or older, and (2) that
it need not render a unanimous verdict regarding the lesser included offenses.
Appellant also asserts that the evidence is insufficient to support three of the
convictions for indecency because there was insufficient evidence to prove intent to
arouse or gratify Appellant’s sexual desire. We affirm.
                                 Background Facts
      A.D. was Appellant’s stepdaughter. A.D. testified that, when she was twelve
years old and the family was living in a trailer in Abilene, Appellant sexually abused
her by touching the inside of her vagina with his finger, by touching her breast with
his hand and mouth, and by making her put her hand on his penis and “pull up.”
These activities happened on more than one occasion while her mother was at work.
The family lived in the trailer for approximately six months in 2012 before moving.
The sexual abuse ceased before A.D. turned thirteen and the family moved to a new
house. A.D. informed her mother of these activities in 2015 when A.D. saw
Appellant seeking massages from her younger sister, and A.D. was concerned about
possible abuse of her sister.
      Appellant was charged with continuous sexual abuse of A.D. from on or about
January 1, 2012, through May 1, 2013, (during a period of thirty days or more in
duration) during which A.D. was twelve years old and, therefore, younger than
fourteen years of age. Four sexual acts were alleged to have occurred during that
time frame: (1) aggravated sexual assault by causing penetration of the female sexual
organ of A.D. with Appellant’s finger; (2) indecency with a child by touching the
breast of A.D. with Appellant’s hand; (3) indecency with a child by touching the
breast of A.D. with Appellant’s mouth; and (4) indecency with a child by causing
the hand of A.D. to contact the genitals of Appellant. The aggravated sexual assault
                                          2
offense’s requirement that the victim be younger than fourteen years of age is the
focus of Appellant’s first issue.
      At trial, A.D. and several other witnesses, including Appellant, testified. The
charge was prepared, and Appellant failed to object to the charge based on the
arguments he is presenting on appeal. The jury found Appellant not guilty of
continuous sexual abuse, but found him guilty of aggravated sexual assault of a child
under fourteen and three counts of indecency with a child by contact. Appellant
timely appealed.
                                      Analysis
I. Jury Charge Error
      In his first two issues, Appellant contends that (1) the jury charge erroneously
authorized the jury to find Appellant guilty of aggravated sexual assault of a child
under the age of fourteen even if it was shown that A.D. was fourteen years of age
or older and (2) the jury charge erroneously allowed for the possibility of a non-
unanimous verdict as to all four of the lesser included offenses.
      A. Charge Error Relating to Victim’s Age
      The offense of aggravated sexual assault applies to children under the age of
fourteen. PENAL § 22.021(a)(2)(B). The jury was instructed that a person commits
sexual assault if he intentionally or knowingly causes the penetration of the sexual
organ of a child by any means, and aggravated sexual assault if he commits sexual
assault and the child is younger than fourteen years of age.
      Appellant’s arguments are focused on an instruction that is in the abstract
section, before the application paragraphs relating to continuous sexual abuse, and
that is entitled “On or About.” That instruction provided in part:
      [T]he State is not required to prove the exact dates alleged in the
      indictment but may prove the offenses, if any, to have been committed
      at any time prior to the presentment of the indictment so long as said
      offenses, if any, occurred after September 1, 2007.
                                          3
A similar instruction was repeated in the lesser included offenses section before the
application paragraphs relating to the aggravated sexual assault offense. A.D.’s
birthday is May 1, 2000; she turned fourteen on May 1, 2014. The indictment was
presented October 8, 2015. In this case, the State had to prove that the offense of
aggravated sexual assault of a child was committed before A.D. turned fourteen
years old on May 1, 2014. Appellant argues the instruction permitted the jury to find
Appellant guilty of aggravated sexual assault up until the time the indictment was
presented when A.D. was over fourteen.
      The State is generally not required to prove that an offense was committed on
the date alleged in the indictment as long as the date of the offense was prior to the
return of the indictment and within the statutory limitation period. Sledge v. State,
953 S.W.2d 253, 256 (Tex. Crim. App. 1997); see Klein v. State, 273 S.W.3d 297,
304 n.5 (Tex. Crim. App. 2008). Appellant contends, however, that the trial court
erred by instructing the jury that this rule applied to his prosecution for continuous
sexual abuse of a child and aggravated sexual assault of a child.
      It was not error to instruct the jury that, in a prosecution for continuous sexual
abuse of a child and lesser included offenses, the State is not bound to prove the
exact dates alleged in the indictment. The State had only to prove that a thirty-day
period of abuse occurred between January 1, 2012, and May 1, 2013. The issue is
whether the trial court’s charge sufficiently qualified the instruction by requiring the
jury to find that the aggravated sexual assault offense had to be committed before
May 1, 2014—when A.D. turned fourteen. See Martin v. State, 335 S.W.3d 867,
874 (Tex. App.—Austin 2011, pet. ref’d) (charge not erroneous where the
application paragraph required the jury to find the victim was younger than fourteen
when the acts of abuse occurred).
      The “Accusation” paragraph informed the jury that, during the period from on
or about January 1, 2012, through May 1, 2013, “when the defendant was seventeen
                                           4
(17) years of age or older, [defendant committed] two or more acts of sexual abuse
against [A.D.], a child younger than fourteen (14) years of age, namely, Aggravated
Sexual Assault.” The jury was further informed that a person commits aggravated
sexual assault if “the child is younger than fourteen (14) years of age” at the time of
the sexual assault. In the section of the charge entitled “Lesser Included Offenses,”
the jury was instructed that the child must be younger than fourteen years of age at
the time of the sexual assault.2 The application paragraphs for aggravated sexual
assault provides that the jury must find that Appellant, on or about May 1, 2013,
committed the offense and that, at the time of the offense, A.D. was a child younger
than fourteen years of age. 3 The jury was specifically instructed that if it failed to
find that, at the time of the offense, A.D. was a child younger than fourteen, it must
find the defendant “not guilty” of aggravated sexual assault.
        In examining the charge for possible error, reviewing courts “must examine
the charge as a whole instead of a series of isolated and unrelated statements.”
Vasquez v. State, 389 S.W.3d 361, 367 (Tex. Crim. App. 2012) (quoting Dinkins v.
State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995)). “The purpose of the trial
court’s jury charge is to instruct the jurors on all of the law applicable to the case.”
Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim App. 2015) (citing Vasquez v. State,
389 S.W.3d 361, 366 (Tex. Crim. App. 2012)). The application paragraph applies
the pertinent penal law, abstract definitions, and general legal principles to the
particular facts and the indictment allegations.                 Vasquez, 389 S.W.3d at 366.
Because that paragraph specifies the factual circumstances under which the jury
should convict or acquit, it is the “heart and soul” of the jury charge. Id. at 367; see
Gray v. State, 152 S.W.3d 125, 127–28 (Tex. Crim. App. 2004).

        2
         The jury was instructed that the indecency with a child offenses must occur with a child younger
than seventeen years of age. The indecency claims are not at issue in this appeal.
        3
         The indecency offenses apply to victims younger than seventeen years of age at the time of the
sexual contact specified in the statute.
                                                  5
       In the charge before us, the application section relating to aggravated sexual
assault was correct. It sets out the date of the offense as “on or about May 1, 2013,”
and the requirement that the victim was a child younger than fourteen at the time of
the offense.
       The Austin Court of Appeals addressed a similar issue involving a jury charge
on continuous sexual abuse of a child in Martin. In Martin, the court’s charge
included an instruction that the State was not required to prove the exact dates
alleged but could instead prove that the offense was committed at any time prior to
the presentment of the indictment. 335 S.W.3d at 875. Additionally, the court
instructed the jury that the offense of continuous sexual abuse of a young child
applies only to children younger than fourteen years of age. Id. at 874. The
application paragraph for count one required the jury to find that the victim was
younger than fourteen when the acts of abuse occurred. Id. The jury knew from the
evidence that the victim turned fourteen on January 27, 2008. Id. The Austin court
determined that the additional instructions and application paragraphs qualified the
statement of the general rule that the State is not required to prove when the offenses
were committed as long as they were committed before the indictment was
presented, and the court held that the instruction did not erroneously permit the jury
to find continuous sexual abuse of a child for conduct committed after the child
reached fourteen years of age.4 Id.
       We agree with the State that the court’s charge was adequate to assure that the
jury in this case did not convict Appellant of aggravated sexual assault based on
conduct occurring after A.D.’s fourteenth birthday. The trial court instructed the
jury that the offense of aggravated sexual assault of a child applies only to children
younger than fourteen years of age. The application paragraph for aggravated sexual


       4
         The Austin court did, however, find error because the instruction permitted the jury to find an
offense prior to the effective date of the statute. Martin, 335 S.W.3d at 875.
                                                       6
assault required the jury to find that A.D. was younger than fourteen when the sexual
assault occurred. The jury knew from the evidence that A.D. turned fourteen on
May 1, 2014.       Thus, notwithstanding the court’s instruction regarding the
nonbinding nature of the dates alleged in the indictment, the jurors were required to
find that the aggravated sexual assault occurred before A.D.’s fourteenth birthday in
order to convict Appellant of aggravated sexual assault. Considered as a whole, we
hold that the court’s charge was not erroneous in this regard. Based on the same
reasoning and the fact that the relevant age for the offense of indecency with a child
is seventeen years of age, we hold that the court’s charge was not erroneous.
      Even if the jury charge was erroneous, in the absence of any objection to the
charge, reversal is proper only if the error caused actual egregious harm to Appellant.
Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015). To determine
whether error caused egregious harm, we look to the particular facts of the case and
consider (1) the entire jury charge; (2) the state of the evidence, including contested
issues and the weight of the probative evidence; (3) the parties’ arguments; and
(4) all other relevant information in the record. Id.; Cosio v. State, 353 S.W.3d 766,
777 (Tex. Crim. App. 2011).
       Here, there was no allegation, evidence, or any argument of any offenses
occurring after May 1, 2013. Consequently, if there was error, it was harmless. At
trial, A.D. testified regarding the acts of sexual assault that Appellant committed
when A.D. was twelve years old. According to A.D., by the time A.D. was thirteen
years old, the family had moved from the trailer and the abuse had ceased.
Furthermore, the State never argued that any offenses occurred after May 1, 2013—
Appellant’s thirteenth birthday. We overrule Appellant’s first issue.
      B. Jury Unanimity
      Under Texas law, jury unanimity is required in all criminal cases. Jourdan v.
State, 428 S.W.3d 86, 94 (Tex. Crim. App. 2014); Flores v. State, 513 S.W. 3d 146,
                                          7
147 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d.). A jury must reach a
unanimous verdict about a specific felony that the defendant committed, meaning
the jury must agree upon “a single and discrete incident that would constitute the
commission of the offense alleged.” See Cosio, 353 S.W.3d at 771 (quoting Stuhler
v. State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007)). While jury unanimity
generally is not required on the alternate modes or means of commission, the jurors
must all agree “that the defendant committed the same, single, specific criminal act.”
See Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005).
       A defendant may choose to require the State to elect a specific criminal act
that it relies upon for conviction. See Cosio, 353 S.W.3d at 775. Even if the
defendant does not require an election, “guaranteeing unanimity is ultimately the
responsibility of the trial judge,” and “[t]he trial judge is therefore obligated to
submit a charge that does not allow for the possibility of a non-unanimous verdict.”
Id. at 776.
       In the court’s instructions relating to continuous sexual abuse was an
instruction entitled “Specific Acts, If Any” that provided in part:
       You are instructed that members of the jury are not required to agree
       unanimously on which specific acts of sexual abuse, if any, were
       committed by the defendant or the exact date when those acts were
       committed, if any. The jury must agree unanimously that the defendant,
       during a period that was thirty (30) or more days in duration, committed
       two or more acts of sexual abuse as that term has been previously
       defined.5
Appellant agrees that this instruction was correct when applied to continuous sexual
abuse of a child but argues that it was erroneously applied to the other lesser included
offenses.




       5
        This is a paraphrase of the continuous sexual abuse of a child statute, which does not require
unanimity on the specific acts of sexual abuse. PENAL § 21.02(d).
                                                   8
      The application paragraphs relating to continuous sexual abuse are followed
by the instructions relating to the lesser included offenses. At the top of page seven
is the title “Lesser Included Offenses” in large type and centered. Below that is a
paragraph that provides: “All of the foregoing instructions and definitions provided
for the alleged indicted offense, also applies to the alleged lesser included offenses,
if any, described below.” Thus, Appellant contends the instruction that the jury was
not required to agree unanimously on which specific acts of sexual abuse, if any,
were committed was incorporated into the instructions relating to the lesser included
offenses. A closer review of the instructions relating to the lesser included offenses
reveals otherwise.
      In the application section for each lesser included offense, the elements of the
offense were listed with the following admonitions:
   • “You must all agree on elements . . . listed above.”
   • “If you all agree the state has failed to prove, beyond a reasonable
     doubt, elements . . . listed above, you must find the defendant ‘not
     guilty’ of [offense].”
   • “If you all agree the state has proved each of the two elements above,
     beyond a reasonable doubt, you must find the defendant ‘guilty’ of
     [offense].”
The jury charge in its application section for each lesser included offense clearly
advised the jurors that their verdict must be unanimous for each of the lesser included
offenses. We do not believe the boilerplate language referencing the incorporation
of the foregoing “instructions and definitions” from the indicted offense contradicted
the specific instructions on unanimity that accompanied each lesser included offense
in the charge.
      Even if the jury charge erroneously permitted a non-unanimous verdict, in the
absence of any objection to the charge, reversal is proper only if the error caused
actual egregious harm to Appellant. Arrington, 451 S.W.3d at 840. For error to be

                                          9
egregious, it must have affected the very basis of the case, deprived the accused of
a valuable right, or vitally affected a defensive theory. Id.; Cosio, 353 S.W.3d at
777.
       To determine whether error caused egregious harm, we look to the particular
facts of the case and consider (1) the entire jury charge; (2) the state of the evidence,
including contested issues and the weight of the probative evidence; (3) the parties’
arguments; and (4) all other relevant information in the record. Arrington, 451
S.W.3d at 840; Cosio, 353 S.W.3d at 777.
       As mentioned previously, the instruction regarding lack of unanimity clearly
applied to the continuous sexual abuse offense of which Appellant was not
convicted. When the jury moved to consider the lesser included offenses, the charge
clearly required unanimity as to each offense. The four specific references to
unanimity that accompanied each lesser included offense qualified the boiler plate
language incorporating the previous instructions and definitions. Furthermore, the
State never argued that the jury could find Appellant guilty of a lesser included
charge on less than a unanimous verdict.
       We look to the state of the evidence to determine actual harm by assessing
“the likelihood that the jury would in fact have reached a non-unanimous verdict on
the facts of [this] particular case.” See Jourdan, 428 S.W.3d at 98. A.D. testified
that each of the four lesser included offenses occurred in the manner and time in
which they were alleged. See Cosio, 353 S.W. 3d at 777 (no egregious harm from
erroneous charge regarding a question of juror unanimity when victim’s testimony
detailed each of four incidents of sex offense). Finally, the jury was polled and the
court found the jury’s verdict unanimous on each offense. Based on the charge,
evidence, and the parties’ arguments, Appellant did not suffer egregious harm by the
submission of this charge. See id. We overrule Appellant’s second issue.


                                           10
II. Sufficiency of the Evidence
      In his third issue, Appellant argues that the evidence at trial was insufficient
to prove intent to arouse or gratify Appellant’s sexual desire as required by the
offense of indecency with a child by contact.
      A. Standard of Review
      To determine if the evidence is legally sufficient, the appellate court reviews
all of the evidence in the light most favorable to the verdict and determines whether
any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Laster v. State,
275 S.W.3d 512, 517–18 (Tex. Crim. App. 2009); Chavez v. State, 324 S.W.3d 785,
786 (Tex. App.—Eastland 2010, no pet.). The jury, as the finder of fact, is the sole
judge of the weight and credibility of the witnesses’ testimony. Fuentes v. State,
991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact is presumed to
resolve conflicts in the evidence and inferences in favor of the prevailing party.
Jackson, 443 U.S. at 326; Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).
       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.
      The elements of indecency with a child by contact are engaging in sexual
contact with a child under seventeen years of age who is not the spouse of the person
or causing the child to engage in sexual contact, whether the child is of the same or
opposite sex. PENAL § 21.11(a)(1). Sexual contact includes (1) any touching by a
person, including touching through clothing, of the anus, breasts, or any part of the
                                         11
genitals of a child committed with the intent to arouse or gratify the sexual desire of
any person or (2) any touching of any part of the body of a child, including touching
through clothing, with the anus, breast, or any part of the genitals of a person. Id.
§ 21.11(c). The specific intent required for the offense of indecency with a child
may be inferred from a defendant’s conduct, his remarks, and all of the surrounding
circumstances. Bazanes v. State, 310 S.W.3d 32, 40 (Tex. App.—Fort Worth 2010,
pet. ref’d). Furthermore, the complainant’s testimony alone is sufficient to support
a conviction for indecency with a child. Id. at 40.
      B. Evidence
      A.D. testified that Appellant began to put his hands down her pants in August
2012, that he touched the inside of her vagina with his finger for approximately “a
minute,” and that he did this on multiple occasions. He also grabbed her hand and
made her put it inside his underwear on his penis and “pull up.” She said that
“sperm” or maybe urine came out of his penis but she said it “probably wasn’t”
urine. Appellant also asked for massages, and he would expose himself while asking
her to massage his legs. A sexual assault nurse examiner (SANE) also testified and
confirmed that A.D. told her that Appellant would force A.D. to touch his privates
and that he would kiss her and put his mouth on her vagina.
      Appellant testified and denied doing any of the conduct for which he was
charged. He stated he had no sexual contact with A.D. in any way to arouse or to
gratify his sexual desire. At trial, Appellant attacked the credibility of A.D. He and
A.D. had arguments over her boyfriend, the use of her mother’s tablet, and her desire
to live with her “real” dad.
      C. Legally Sufficient Evidence of Specific Intent
      The specific intent required for the offense of indecency with a child may be
inferred from a defendant’s conduct, his remarks, and all of the surrounding
circumstances. See McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel
                                          12
Op.] 1981); Connell v. State, 233 S.W.3d 460, 467 (Tex. App.—Fort Worth 2007,
no pet.); see also TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2017)
(providing that conviction for indecency with a child is supportable by
uncorroborated testimony of victim). “An oral expression of intent is not required;
the conduct itself is sufficient to infer intent.” Connell, 233 S.W.3d at 467 (citing
C.F. v. State, 897 S.W.2d 464, 472 (Tex. App.—El Paso 1995, no writ)).
Additionally, a complainant’s testimony alone is sufficient to support a conviction
for indecency with a child. Id. at 466.
      Here, A.D. testified that Appellant put his hand under her underwear and
touched her genitals, that he put his hand under her shirt and touched her breast, and
that he took her hand and placed it on his penis. She said that his penis felt “hard.”
The jury, as the sole judge of the credibility of the witnesses and the weight to be
given their testimony, could have inferred that from A.D.’s testimony that Appellant
acted with the intent to arouse or gratify his sexual desire. See McKenzie, 617
S.W.2d at 216.
      Viewing all of the evidence in the light most favorable to the prosecution and
deferring to the jury’s determination and evaluation of the witnesses’ credibility and
demeanor, we hold that there was evidence and reasonable inferences therefrom
upon which a rational trier of fact could have found beyond a reasonable doubt that
Appellant acted with the intent to arouse or gratify his sexual desire. See Jackson,
443 U.S. at 319; Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008);
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Accordingly, we
hold that the evidence is legally sufficient to support Appellant’s conviction, and we
overrule his third issue.




                                          13
                                               Conclusion
        Having overruled each of Appellant’s issues, we affirm the judgments of the
trial court.




                                                                   REBECCA SIMMONS
                                                                   FORMER JUSTICE


August 31, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, J.,
Simmons, F.J., 6 and Wright, S.C.J. 7

Willson, J., not participating.




        6
         Rebecca Simmons, Former Justice, Court of Appeals, 4th District of Texas at San Antonio, sitting
by assignment.
        7
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
                                                     14
