                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00256-CR



    MATTHEW RYAN JERRY VANOVER, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 196th District Court
                 Hunt County, Texas
                Trial Court No. 28,845




       Before Morriss, C.J., Carter and Moseley, JJ.
         Memorandum Opinion by Justice Carter
                                         MEMORANDUM OPINION
            Matthew Ryan Jerry Vanover was convicted of indecency with a child by sexual contact 1

and was sentenced to seven years’ imprisonment. Because (1) error in the court’s charge did not

result in egregious harm, and (2) the evidence is legally sufficient to support the conviction, we

affirm the judgment of the trial court.

I.          Background

            On a December evening in 2008, twelve-year-old Chloe Cherry2 and Vanover, her

seventeen-year-old cousin, were watching television together at Chloe’s home. 3 The two were

alone in the room as Chloe’s mother, Rita, had gone to bed for the evening. As they were

watching television, Vanover began rubbing Chloe’s thigh, breasts, and buttocks. This conduct

continued in the face of Chloe’s protests. At one point during the evening, Chloe texted her

older sister in Kentucky to tell her that Vanover was hurting her. Chloe’s sister then sent Rita a

text message, indicating that Vanover was bothering Chloe. At that point, Rita checked on Chloe

and Vanover, but was told by both that nothing was wrong. 4 Chloe took the opportunity to

retreat to her room when her mother came out to check on her.




1
    See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011).
2
    This is a pseudonym used to protect the identity of the child victim.
3
    Chloe was seventeen at the time of trial.
4
 Chloe testified to additional conduct by Vanover, which could have resulted in a conviction for aggravated sexual
assault. Because the jury found Vanover not guilty of this charge, our recitation of the facts and our analysis here is
based solely on the events supporting the charge of indecency with a child by sexual contact, of which Vanover was
convicted.

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       In September 2010, Chloe showed Rita some text messages she had recently received

from Vanover. In one of the messages, Vanover stated that he was sorry “for all the things I’ve

ever done to you.” When Rita asked Chloe what that meant, Chloe began to cry. Chloe then told

Rita that Vanover had touched her on her breasts and put his hand in her pants. The following

day, Rita and Chloe went to the Hunt County Sheriff’s Office to report Vanover’s conduct.

II.    Error in Court’s Charge Did Not Result in Egregious Harm

       Vanover claims egregious harm from the trial court’s failure to properly define the

mental state required for commission of the offense of indecency with a child by sexual contact.

While we agree that the court’s charge was erroneous, we cannot conclude that Vanover was

egregiously harmed as a result.

       A.     Standard of Review

       In analyzing a jury charge complaint, we review the charge under the Almanza standard.

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g). Our first duty is

to determine whether error exists in the charge. On a finding of error, we must determine

whether sufficient harm resulted from the error to compel reversal. Ngo v. State, 175 S.W.3d

738, 743–44 (Tex. Crim. App. 2005). The degree of harm required to reverse the trial court’s

judgment depends on whether the appellant properly objected to the error. Abdnor v. State, 871

S.W.2d 726, 732 (Tex. Crim. App. 1994). When a proper objection is made at trial, we need

only find “some harm” to reverse the trial court’s judgment. Ngo, 175 S.W.3d at 743–44 (citing

Almanza, 686 S.W.2d at 171). In the case of unpreserved error, reversal is required only when

the record shows “egregious harm” to the defendant. Id. (citing Almanza, 686 S.W.2d at 171).

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“Egregious harm” results from “errors affecting the very basis of the case or that deprive the

defendant of a valuable right, vitally affect a defensive theory, or make the case for conviction or

punishment clearly and significantly more persuasive.” Boones v. State, 170 S.W.3d 653, 660

(Tex. App.—Texarkana 2005, no pet.) (citing Saunders v. State, 817 S.W.2d 688, 692 (Tex.

Crim. App. 1991)).

       B.      Analysis

       Here, there was no objection at trial to the charge. One method of committing indecency

with a child by sexual contact occurs if a person, with a child younger than seventeen years and

not the person’s spouse, “engages in sexual contact with the child or causes the child to engage

in sexual contact.” TEX. PENAL CODE ANN. § 21.11(a)(1). For purposes of this statute, “sexual

contact” is defined as “any touching by a person, including touching through clothing, of the

anus, breast, or any part of the genitals of a child” if committed “with the intent to arouse or

gratify the sexual desire of any person.” TEX. PENAL CODE ANN. § 21.11(c)(1) (West 2011).

       Here, the application paragraph of the court’s charge stated,

       Now, if you find from the evidence beyond a reasonable doubt that on or about
       the 1st day of December, 2008, in Hunt County, Texas, the defendant,
       MATTHEW RYAN JERRY VANOVER, did then and there with intent to arouse
       or gratify the sexual desire of MATTHEW RYAN JERRY VANOVER,
       intentionally or knowingly engage in sexual contact with CHLOE CHERRY
       (pseudonym) by touching the genitals or breast(s) of CHLOE CHERRY
       (pseudonym), a child younger than 17 years of age, then you will find the
       defendant “Guilty” as charged in Count Two.

The application paragraph here listed the culpable mental states of intentionally and knowingly

with the specific intent necessary to complete the crime. Vanover, therefore, contends that the

jury could have convicted him for intentionally or knowingly engaging in sexual contact with
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Chloe, when the proper mental state for the offense is the specific intent “to arouse or gratify the

sexual desire of any person.” See TEX. PENAL CODE ANN. § 21.11(c)(1); see also Rodriguez v.

State, 24 S.W.3d 499, 502 (Tex. App.—Corpus Christi 2000, pet. ref’d). The charge also

included full statutory definitions of “intentionally” and “knowingly.”

       A jury charge which injects the terms intentionally and knowingly into the specific intent

offense of indecency with a child is error. Bazanes v. State, 310 S.W.3d 32, 37 (Tex. App.—Fort

Worth 2010, pet. ref’d) (finding harmless error); Rodriguez, 24 S.W.3d at 502; see Jones v. State,

229 S.W.3d 489, 492 (Tex. App.—Texarkana 2007, no pet.). The State concedes error in the

charge, but contends any resulting harm was not egregious.

       We next review the record to determine whether the charge error harmed Vanover. See

Almanza, 686 S.W.2d at 174. In conducting this analysis, we consider (1) the charge itself,

(2) the probative evidence, (3) the arguments of counsel, and (4) any other relevant information

revealed by the record of the trial as a whole. Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim.

App. 2011) (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)); Jones, 229

S.W.3d at 493.

       Looking at the charge as a whole, the abstract portion includes the correct definition of

the offense of indecency with a child by sexual contact, including the specific intent to arouse or

gratify. This portion of the charge thus informed the jury what the State was required to prove.

See Bazanes, 310 S.W.3d at 37.

       Although the charge defined intentionally and knowingly and included those terms in the

application portion of the charge, those terms were not included in the abstract portion of the

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charge defining the offense of indecency with a child by sexual contact. Further, under the

application paragraph, the jury was instructed to return a guilty verdict only if it found Vanover

did, with “intent to arouse or gratify [his] sexual desire . . . intentionally or knowingly engage in

sexual contact . . . .” Given this phrasing, there is little risk the jury might believe any one of

these culpable mental states, standing alone, would permit conviction. In the context of the

entire charge, which correctly instructed the jury that it must find Vanover acted with the specific

intent to arouse or gratify his sexual desire, the erroneous application paragraph appears less

harmful. See Bazanes, 310 S.W.3d at 37.

       In reviewing the state of the evidence, we note that the issue of Vanover’s intent was not

a contested issue at trial. Instead, Vanover’s defense focused on Chloe’s credibility. Likewise,

rather than focusing on the erroneous mental states in the jury charge, the State focused on the

commission of the offense. As recognized in Jones,

       [T]he intent of [Appellant] in touching [the child victim,] while it was a part of
       the State’s required proof, was not a contested issue and consequentially [he]
       could not be egregiously harmed by the definition of the intentional and knowing
       state of mind.

Jones, 229 S.W.3d at 494 (citing Saldivar v. State, 783 S.W.2d 265, 268 (Tex. App.—Corpus

Christi 1989, no pet.) (“Where no defense is presented which would directly affect an assessment

of mental culpability, there is no harm in submitting erroneous definitions of ‘intentionally’ and

‘knowingly.’”)).

       The jury argument likewise does not indicate egregious harm. The State’s only comment

on the issue of intent included the concept of gratification. The state asked, “Do you think

there’s any way possible that wasn’t intentionally to gratify Mr. Vanover, the Defendant. No.”
                                                 6
The only mention of intent was made in connection with the intent to gratify Vanover. No

reference was made to an intentional or knowing touching during the State’s jury argument.

       Based on the foregoing analysis, we conclude that Vanover was not egregiously harmed

by the jury instructions.

III.   Sufficient Evidence of Specific Intent

       Vanover next contends the evidence was insufficient to support the conviction. His

sufficiency argument is not, however, that the evidence failed to show beyond a reasonable doubt

that he touched Chloe in the manner described at trial. Instead, Vanover maintains that the

evidence was insufficient to show the intent to arouse or gratify his sexual desire.

       A.      Standard of Review

       In evaluating the legal sufficiency of the evidence, we review all the evidence in the light

most favorable to the jury’s verdict to determine whether any rational jury could have found the

essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893,

912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v.

State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d).              We examine legal

sufficiency under the direction of the Brooks opinion, while giving deference to the

responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); Smith v. State, 401 S.W.3d 915,

920 (Tex. App.—Texarkana 2013, pet. ref’d).




                                                 7
        Legal sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). The hypothetically correct jury charge “sets out the law, is authorized by the indictment,

does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability, and adequately describes the particular offense for which the defendant was

tried.” Id.

        B.     Analysis

        Vanover argues that the evidence is insufficient to show that he had the statutorily

required intent to “arouse or gratify . . . sexual desire.” See TEX. PENAL CODE ANN. § 21.11

(West 2011). The specific intent required for the offense of indecency with a child—intent to

arouse or gratify the sexual desire of any person—can be inferred from the defendant’s conduct.

Bazanes, 310 S.W.3d at 40 (citing McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App.

[Panel Op.] 1981)); see Moore v. State, 397 S.W.3d 751, 754 (Tex. App.—San Antonio 2013, no

pet.). “An oral expression of intent is not required . . . .” Williams v. State, 305 S.W.3d 886, 891

(Tex. App.—Texarkana 2010, no pet.) (citing Couchman v. State, 3 S.W.3d 155, 163 (Tex.

App.—Fort Worth 1999, pet. ref’d)); see Abbott v. State, 196 S.W.3d 334, 341 (Tex. App.—

Waco 2006, pet. ref’d) (jury could infer intent to arouse or gratify sexual desire from defendant’s

act of touching child’s genitals).

        Chloe testified that Vanover rubbed her thighs, breasts, and buttocks as the pair watched

television. This testimony regarding Vanover’s conduct is sufficient evidence from which a

jury—as the sole judge of the credibility of the witnesses and the weight to be given their

                                                 8
testimony—could reasonably infer that such conduct was undertaken to arouse or gratify

Vanover’s sexual desire. See Bazanes, 310 S.W.3d at 40. We, therefore, conclude that there

was sufficient evidence to find the specific intent necessary to support Vanover’s conviction of

indecency with a child by sexual contact.

       We overrule this point of error.

IV.    Conclusion

       We affirm the trial court’s judgment.




                                               Jack Carter
                                               Justice

Date Submitted:       August 13, 2014
Date Decided:         September 3, 2014

Do Not Publish




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