                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-15-00024-CR


DANIEL WILLIAM MOHLER                                              APPELLANT

                                         V.

THE STATE OF TEXAS                                                       STATE


                                      ----------

     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
                   TRIAL COURT NO. 1345064D

                                      ----------

                           MEMORANDUM OPINION1

                                      ----------

      Appellant Daniel William Mohler appeals two convictions for indecency

with a child. The jury assessed punishment at six years for each offense, and

the trial court sentenced Appellant accordingly and ordered the punishments to

run consecutively. Appellant brings four points. In his first point, he complains

about charge error; in his second, he complains about the sufficiency of the


      1
          See Tex. R. App. P. 47.4.
evidence to support one of his convictions; and in the third and fourth points, he

complains about the admission of testimony by the investigating officer. We

affirm.

                                 The Indictment

      The indictment contained five counts. The first count provided:

      [T]hat [Appellant], hereinafter called the Defendant, in the County of
      Tarrant and State aforesaid, on or about the 1st day of September
      2011,

      through the 14th day of August, 2013, did intentionally or knowingly,
      during a period of time that is 30 days or more in duration, commit
      two or more acts of sexual abuse, to wit: [1] aggravated sexual
      assault of a child under 14 years of age by causing the sexual organ
      of [Complainant] to contact the sexual organ of the defendant and/or
      [2] by causing the penetration of the sexual organ of [Complainant]
      by inserting his finger into her sexual organ and/or [3] by causing the
      sexual organ of [Complainant] to contact the mouth of the defendant
      and/or [4] indecency with a child by touching the genitals of
      [Complainant] with the hand of the defendant and/or [5] by touching
      the anus of [Complainant] with the hand of the defendant and at the
      time of the commission of each of these acts of sexual abuse the
      defendant was 17 years of age or older and [Complainant] was
      younger than 14 years of age . . . .

In Count One, the State charged Appellant with the offense of continuous sexual

abuse of a young child. See Tex. Penal Code Ann. § 21.02(b) (West Supp.

2016). The five acts of sexual abuse specifically enumerated in the first count

are lesser-included offenses of the offense of continuous sexual abuse. See id.

§ 21.02(c) (West Supp. 2016); Soliz v. State, 353 S.W.3d 850, 854 (Tex. Crim.

App. 2011).




                                        2
      Four of those lesser-included offenses were charged in the remaining four

counts of the indictment. In Count Two, the State alleged that Appellant caused

the sexual organ of Complainant to contact the sexual organ of Appellant—the

offense of aggravated sexual assault of a child under fourteen years of age and

the first act of sexual abuse alleged in Count One. See Tex. Penal Code Ann.

§ 22.021(a)(1)(B)(iii) (West Supp. 2016). In Count Three, the State alleged that

Appellant caused the sexual organ of Complainant to contact his mouth—the

offense of aggravated sexual assault of a child under fourteen years of age and

the third act of sexual abuse alleged in Count One. See id. In Count Four, the

State alleged that Appellant intentionally, with the intent to arouse or gratify his

sexual desire, engaged in sexual contact by touching the genitals of

Complainant, a child younger than seventeen years of age—the offense of

indecency with a child by contact and the fourth act of sexual abuse alleged in

Count One. See id. § 21.11(a)(1), (c)(1) (West 2011). Finally, in Count Five, the

State alleged that Appellant intentionally, with the intent to arouse or gratify his

sexual desire, engaged in sexual contact by touching the anus of Complainant, a

child younger than seventeen years of age—the offense of indecency with a child

by contact and the fifth act of sexual abuse alleged in Count One.2 See id.


      2
         The State also alleged in the indictment a special issue that at the time
Appellant committed the offense or offenses, Complainant was a child younger
than six years of age. This special issue did not make it into the jury charge, and
because there are no complaints regarding the special issue, we will not address
it further.


                                         3
            Peculiarities of the Offense of Continuous Sexual Abuse

        The statutory language for the offense of continuous sexual abuse reflects

that the Legislature intended to permit one conviction for continuous sexual

abuse based on the repeated acts of sexual abuse that occur over an extended

period of time, even if the jury lacked unanimity as to each of the particular

sexual acts or their time of occurrence, so long as the jury members agreed that

at least two acts occurred during a period that was thirty or more days in

duration.   See id. § 21.02(b), (d), (f) (West Supp. 2016); Price v. State, 434

S.W.3d 601, 605–06 (Tex. Crim. App. 2014).            The statutory language also

reflects that the Legislature intended to disallow dual convictions for the offense

of continuous sexual abuse and for the offenses enumerated as “acts of sexual

abuse” when based on conduct against the same child during the same period of

time.    See Tex. Penal Code Ann. § 21.02(e) (West Supp. 2016); Price, 434

S.W.3d at 606. Accordingly, in the context of the indictment in this case, if the

jury convicted Appellant of Count One, the Legislature did not contemplate the

jury also convicting Appellant on any of the lesser-included offenses listed in

Counts Two through Five.

        On the other hand, in the context of the indictment in this case, if the jury

found Appellant not guilty of Count One, because the lesser-included offenses

were listed in subsequent counts, the jury potentially could have found Appellant

guilty of one, two, three, or all four of the lesser-included offenses identified in

Counts Two through Five. See Tex. Code Crim. Proc. Ann. art. 21.24 (West


                                          4
2009); Shavers v. State, 881 S.W.2d 67, 73–75 (Tex. App.—Dallas 1994, no

pet.).

  State Abandons Counts Two through Five but Requests Independent
Verdicts on the Five Lesser-Included Offenses Identified as Acts of Sexual
                           Abuse in Count One

         At the close of the evidence, the State abandoned Counts Two through

Five but asked for the lesser-included offenses identified in Count One. The

charge, as submitted, authorized the jury to convict Appellant of Count One or,

assuming the jury found Appellant not guilty of Count One, authorized the jury to

convict Appellant of one, two, three, four, or all five of the lesser-included

offenses found within Count One.3

                                   The Jury Verdict

         The jury found Appellant not guilty of Count One, not guilty of the first three

lesser-included offenses, and guilty of the last two lesser-included offenses. The

jury thereafter assessed Appellant’s punishment for each of the lesser-included

offenses at six years’ confinement. The trial judge ordered the sentences to run

consecutively.




         3
        Citing article 21.24 of the code of criminal procedure, the court in Shavers
held that when the defendant was convicted of two lesser-included offenses
under one count in one indictment, one of the lesser-included offenses had to be
vacated. Shavers, 881 S.W.2d at 74–75. We have previously held that violation
of the one-offense-per-indictment rule is fundamental error. Owens v. State, 851
S.W.2d 398, 401 (Tex. App.—Fort Worth 1993, no pet.). But courts will not raise
the issue sua sponte. Id.


                                            5
                            Sufficiency of the Evidence

        In point two, Appellant maintains that the evidence is insufficient to sustain

his conviction for indecency with a child by touching her anus with his hand

because Complainant denied the conduct during her trial testimony and because

the State’s evidence showed that she referred to her “butt” as her buttocks or her

anus.     Because Appellant admitted touching Complainant’s anus in State’s

Exhibit 1, we disagree.

        In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine 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, 99 S. Ct. 2781, 2789 (1979).         This standard gives full play to the

responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Id.; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136

S. Ct. 198 (2015).

        The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs v.

State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Thus, when performing an

evidentiary sufficiency review, we may not re-evaluate the weight and credibility

of the evidence and substitute our judgment for that of the factfinder.           See

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we


                                           6
determine whether the necessary inferences are reasonable based upon the

cumulative force of the evidence when viewed in the light most favorable to the

verdict.   Murray, 457 S.W.3d at 448.       We must presume that the factfinder

resolved any conflicting inferences in favor of the verdict and defer to that

resolution. Id. at 448–49.

      State’s Exhibit 1 is a recorded conversation between Complainant’s

mother (Appellant’s daughter) and Appellant. During the recording, Appellant

stated that he touched Complainant’s anus for the purported purpose of checking

for pinworms. Complainant’s mother corrected Appellant by explaining to him

that touching the anus was not the proper way to check for pinworms and by

further explaining to him that the proper way was to place tape over the anus.

The only question for the jury was, therefore, whether to believe Appellant’s

explanation. The verdict reflects that the jurors did not; instead, they believed

that he touched her with the intent to arouse or gratify his sexual desire. This

evidence, when viewed in the light most favorable to the verdict, was sufficient

for a rational trier of fact to find the essential elements of the crime beyond a

reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.

      We overrule Appellant’s second point.




                                        7
                                Double Jeopardy

      In point one, Appellant argues that the trial court erred by charging the jury

on the two lesser-included offenses of indecency with a child by contact because

they were jeopardy barred by his acquittal on Count One.4 We disagree.

      Appellant was never in danger of being convicted of both the greater and

lesser offenses. As structured, the charge instructed the jury to proceed to the

lesser-included offenses only if it found Appellant not guilty of Count One, that is,

not guilty of continuous sexual abuse. Because the charge is relatively complex,

we provide it in an endnote.i In compliance with the instructions, after finding

Appellant not guilty of Count One, the jury proceeded to render a verdict on each

of the five enumerated lesser-included offenses.

      We disagree with Appellant that by finding him not guilty of Count One, the

jury found him not guilty of all the lesser-included offenses. To find Appellant

guilty of Count One, the jury had to find that “during a period of time that is 30

days or more in duration, [Appellant] commit[ed] two or more acts of sexual

abuse.” The jury found Appellant not guilty of Count One but guilty of the last two


      4
       Appellant does not argue that the two convictions for indecency with a
child by contact are merged or subsumed within each other; rather, he argues
the two were subsumed within Count One and he was effectively acquitted of
both when he was acquitted of Count One. The two convictions for indecency
with a child could be punished separately. See Aekins v. State, 447 S.W.3d 270,
278 (Tex. Crim. App. 2014) (“A person who commits more than one sexual act
against the same person may be convicted and punished for each separate and
discrete act, . . . . The defendant might touch a child’s breast; then he touches
her genitals. Two separate acts, two separate impulses, two separate crimes.”).


                                         8
lesser-included acts of sexual abuse. Accordingly, because the jury found that

Appellant committed two of the enumerated acts of sexual abuse, the only basis

for the jury finding that Appellant was not guilty of Count One was because the

jury did not find that the two acts of sexual abuse occurred over a period of time

of thirty days or more.

      Appellant contends that the charge had to specify that the lesser-included

offenses had to occur within a period of twenty-nine days or less, otherwise the

acquittal on Count One effectively acquitted him of all the lesser-included

offenses as well. We disagree. The charge precluded the jury from even going

to the lesser-included offenses if the jury found Appellant committed two or more

offenses over a period of thirty days or more. Because the jury found Appellant

guilty of two of the lesser-included offenses but did not convict Appellant of Count

One, the jury necessarily did not find that Appellant committed those two lesser-

included offenses over a period of thirty days or more. Only if the jury found that

the two lesser-included offenses occurred during a period of thirty days or more

could Appellant’s double jeopardy argument possibly have any merit, as that was

precisely the issue submitted to the jury in Count One. However, given the way

in which this charge was structured, the jury would never have reached the

lesser-included offenses if it had concluded that the two offenses occurred during

a period of thirty days or more.

      We overrule Appellant’s first point.




                                         9
                  Detective’s Belief in Complainant’s Outcry

      In point three, Appellant asserts that the trial court erred in admitting

Detective Chad Woodside’s testimony indicating a belief in Complainant’s outcry.

At trial, there was evidence that Complainant made an outcry, thereafter

recanted her outcry to her mother, and during a second forensic interview,

denied making a recantation.

      We review the admission of evidence under an abuse of discretion

standard. Garcia v. State, 237 S.W.3d 833, 836 (Tex. App.—Amarillo 2007, no

pet.). We uphold the trial court’s ruling if the admission was within the zone of

reasonable disagreement. Id.

      Regarding    Detective    Woodside’s    vouching     for   the   veracity   of

Complainant’s outcry, Appellant himself invited Detective Woodside to give his

expert opinion on whether Complainant’s recantation was true or not true.

Defense counsel and Detective Woodside engaged in the following exchange:

      [DEFENSE COUNSEL:] [W]hen some child, little child recants their
      testimony, in your experience, expertise as a—as a crime
      investigator, if a little child recants, who is in the best position to
      determine whether or not that child’s recantation is true or not, the
      parent who’s lived with that child all their lives or some person who
      doesn’t even know them?

      A. I guess it depends on what was said in the recant.

      Q. Okay.

      A. I wouldn’t know.




                                        10
Later, when defense counsel asked Detective Woodside to acknowledge that

when he took a child to the hospital and spoke to the child’s parents, he started

off with the assumption that the child was telling the truth, Detective Woodside

agreed that was his assumption. Detective Woodside stated, “If a victim says

they’re a victim, then I’m assuming they’re a victim.”      Detective Woodside’s

assumptions when he initiated an investigation, however, are a far cry from

vouching for the veracity of Complainant’s outcry or the falsity of her recantation

at trial.   To the extent Detective Woodside vouched for the veracity of

Complainant’s outcry, he did so only at the prompting of defense counsel.

Where a defendant, by his questioning, causes the complained-of testimony,

courts consider the error invited and not preserved. See Stranberg v. State, 989

S.W.2d 847, 848 (Tex. App.—Texarkana 1999, pet. ref’d).

       When the State questioned Detective Woodside regarding the second

forensic interview, the following exchange occurred:

       Q. [THE STATE] And in the second interview she didn’t recant, did
       she?

       A. Correct.

       Q. Now, as a detective in these types of cases, have you seen
       recantations before?

       A. Yes.

       Q. And are there true recantations?

       [DEFENSE COUNSEL]:         Which I will object, Your Honor, that’s
       irrelevant.

       THE COURT: Restate your question.

                                        11
      Q. ([THE STATE]) Based upon your experience, your training, your
      knowledge, 30 years in the police department, have you seen
      recantations in cases like this?

      [DEFENSE COUNSEL]: I object to this, Judge. It’s irrelevant.

      THE COURT: Overruled.

      THE WITNESS: Yes.

      Q. ([THE STATE]) And as a detective do you look at that and take
      that seriously?

      A. Yes.

      Q. All right. Do you want to know the truth and get to the bottom of
      what’s going on?

      A. Yes.

      Q. And is it important for you to look at the circumstances in any
      given case?

      A. Yes.

      Q. As a detective in a case like this, would it be concerning to you
      when you have a parent who might not fully be on board, might not
      fully be believing?

      A. It’s not necessarily concerning, but it’s common.

      Q. Is it concerning to you when the perpetrator is a family member
      and the family was once close-knit and this has destroyed the
      family? Do you see that?

      A. Yes, yes, always.

      Earlier in the trial, the forensic interviewer had testified at length about

recantations and about how the forensic interviewer had tried, during a second

interview with Complainant, to probe the circumstances surrounding the

recantation so that the detective could make a decision about how to proceed.



                                       12
Defense counsel himself later questioned Detective Woodside “in [his]

experience, expertise as a . . . crime investigator” about how he handled

recantations and about whether forensic interviewers continued to interview

children “until they [got] the kind of results they want[ed].” Because the jury

heard other evidence from both Detective Woodside and from the forensic

interviewer regarding how to view a recantation, we hold that the trial court did

not abuse its discretion by admitting Detective Woodside’s testimony. See Leday

v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (holding that the

“overruling of an objection to evidence will not result in reversal when other such

evidence was received without objection, either before or after the complained-of

ruling”).

       Furthermore, in this instance, the only question Detective Woodside

answered—over proper objection followed by an adverse ruling—was whether he

had seen recantations in his career, and he answered “yes.”              Detective

Woodside had answered the nearly identical question the same way without an

objection only moments before. Later, on cross-examination, defense counsel

asked Detective Woodside if he had had any experience with recantations, and

Detective Woodside answered that he had. A trial court does not reversibly err

by admitting evidence over objection where the same evidence is admitted

elsewhere during trial without objection. Gurrusqueita v. State, 244 S.W.3d 450,

455 (Tex. App.—Fort Worth 2007, pet. ref’d). Even assuming the trial court had

erred, any error was harmless. See Tex. R. App. P. 44.2(b).


                                        13
      We overrule Appellant’s third point.

                 Minimization and Corroboration Testimony

      In point four, Appellant maintains that the trial court erred in admitting the

investigating officer’s opinion evidence that Appellant had minimized his crimes

and that some parts of the recording corroborated Complainant’s statement.

After the trial court admitted the recording between Appellant and Complainant’s

mother, Detective Woodside testified regarding the recording as follows:

      Q.     [THE STATE]      Let’s talk about this recorded call that
      [Complainant’s mother] did with [Appellant]. In your 30 years with
      the police, have you had an opportunity to interview people accused
      of crimes like this?

      A. Yes.

      Q. On few or many occasions?

      A. Many.

      Q. And when these people are confronted with accusations like this,
      what do they typically do?

      A. Typically, they will minimize their behaviors.     They will make
      excuses, place blame somewhere else.

      ...

      Q. ([THE STATE]) Detective Woodside, when you listen to the
      conversation, do you hear things that corroborate what
      [Complainant] said happened?

      [DEFENSE COUNSEL]: Your Honor, and the tape speaks for itself.
      What he’s hearing is irrelevant.

      THE COURT: Overruled.

      [DEFENSE COUNSEL]: The tape is the best evidence, not his
      opinion about what’s on the tape.


                                        14
THE COURT: Overruled as to that objection.

THE WITNESS: Yes.

Q. ([THE STATE]) And could you just name a few things?

A. Well, first and foremost, she said that Papa Dan touched her girl
parts, and he confirmed that on the audio tape. She said that it
happened in bed, he said it happened in bed. She said she was
wearing a nightgown, he said she was wearing a nightgown. She
said that it happened when Grandma was gone, he said it happened
when Grandma was gone. So it corroborates and confirms what the
victim said in her statement.

Q. And do—what about minimizing, do you see examples of him
minimizing?

A. Yes. He said that—well, biggest thing is he says that she’s
exaggerating, says that she—

[DEFENSE COUNSEL]: Your Honor, can I have—can I have an
ongoing objection as to his interpretation of what’s being said on this
tape and speculating as to whether what’s in [the] minds of the
people who are talking on this tape?

      She’s asked the question for him to analyze and speculate as
to what the people on this tape are saying, as to what that meaning
is, what they’re—what they mean when they’re saying what they’re
saying, asking him to analyze their thought processes. That’s pure
speculation and conjecture on the part of this witness.

THE COURT:        Overruled.  The question was, What about
minimizing, do you see examples of him minimizing? So you can
answer that question.

THE WITNESS: Like I said, he says she’s exaggerating. He says
that she has a big imagination. He says that he gives her [a] shower
because she wants to take a shower or she won’t bathe. Those are
all things to minimize his own behavior. He says that he didn’t say
anything because he was paranoid. Those are all things to minimize
his behavior.




                                  15
      Whether a defendant is guilty or not guilty is a conclusion the jury reaches

based upon the instructions given them in the charge coupled with the evidence

admitted at trial.   See Williams v. State, 417 S.W.3d 162, 182 (Tex. App.—

Houston [1st Dist.] 2013, pet. ref’d). A witness may testify to those opinions that

are “(a) rationally based on the witness’s perception; and (b) helpful to clearly

understanding the witness’s testimony or to determining a fact in issue.” Tex. R.

Evid. 701; see Williams, 417 S.W.2d at 182. “An opinion is not objectionable just

because it embraces an ultimate issue.” Tex. R. Evid. 704. A police officer may

testify regarding his inspection of the evidence. See Williams, 417 S.W.3d at 182

(holding admissible officer’s testimony that the crime scene suggested

“something sexual” and that it did not appear to be a “normal sexual assault”); Ex

parte Nailor, 149 S.W.3d 125, 134–35 (Tex. Crim. App. 2004) (holding counsel

not ineffective for not objecting to officer’s opinion testimony that defendant had

not been attacked); Solomon v. State, 49 S.W.3d 356, 364 (Tex. Crim. App.

2001) (holding admissible witness’s testimony that defendant was responsible for

robbery).

      Detective Woodside testified as to what he, as an investigator, heard when

listening to the audio recording. His testimony was rationally based upon his

perception, assisted by his experience and training, and was helpful to a clear

understanding of the determination of a fact at issue, that is, how to evaluate

Appellant’s explanations for conduct he admitted engaging in. See Tex. R. Evid.




                                        16
701, 704. We hold that the trial court did not abuse its discretion. See Garcia,

237 S.W.3d at 836.

      We overrule Appellant’s fourth point.

                                   Conclusion

      Having overruled Appellant’s points, we affirm the trial court’s judgment.




                                                   /s/ Anne Gardner
                                                   ANNE GARDNER
                                                   JUSTICE

PANEL: GARDNER, MEIER, and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: September 29, 2016
i
 The charge provided for Count One and, separately, the five component lesser-
included offenses independently:

                                  COUNT ONE

             Now, if you find from the evidence beyond a reasonable doubt
      that the defendant, [Appellant], in Tarrant County, Texas, on or
      about the 1st day of September 2011 through the 14th day of August
      2013, did intentionally or knowingly, during a period of time that is 30
      days or more in duration, commit two or more acts of sexual abuse,
      to wit: [1] aggravated sexual assault of a child under 14 years of
      age by causing the sexual organ of [Complainant] to contact the
      sexual organ of the defendant and/or [2] by causing the penetration
      of the sexual organ of [Complainant] by inserting his finger into her
      sexual organ and/or [3] by causing the sexual organ of
      [Complainant] to contact the mouth of the defendant and/or [4]
      indecency with a child by touching the genitals of [Complainant] with
      the hand of the defendant and/or [5] by touching the anus of


                                        17
[Complainant] with the hand of the defendant and at the time of the
commission of each of these acts of sexual abuse the defendant
was 17 years of age or older and [Complainant] was younger than
14 years of age, then you will find the defendant guilty of the offense
of continuous sexual abuse of a child as charged in Count One of
the indictment.
       Unless you so find from the evidence beyond a reasonable
doubt, o[r] if you have a reasonable doubt thereof, you will acquit the
defendant and say by your verdict “Not Guilty” of the offense of
continuous sexual abuse of child as charged in Count One of the
indictment, and you will next consider whether the Defendant is
guilty of each of the lesser included offenses referred to below
separately and individually.
       [1] If you find from the evidence beyond a reasonable doubt
that the defendant, [Appellant], in Tarrant County, Texas, on or
about the 1st day of September 2011 did then and there intentionally
or knowingly cause the sexual organ of [Complainant], a child
younger than 14 years of age, to contact the sexual organ of the
defendant; then you will find the defendant guilty of the lesser
included offense of aggravated sexual assault of a child.
       Unless you so find from the evidence beyond a reasonable
doubt, or if you have a reasonable doubt thereof, you will acquit the
defendant and say by your verdict “Not Guilty” of the lesser included
offense of aggravated sexual assault of a child.
       [2] If you find from the evidence beyond a reasonable doubt
that the defendant, [Appellant], in Tarrant County, Texas, on or
about the 1st day of September 2011 did then and there intentionally
or knowingly cause the penetration of the sexual organ of
[Complainant], a child younger than 14 years of age, by inserting his
finger into her sexual organ, then you will find the defendant guilty of
the lesser included offense of aggravated sexual assault of a child.
       Unless you so find from the evidence beyond a reasonable
doubt, or if you have a reasonable doubt thereof, you will acquit the
defendant and say by your verdict “Not Guilty” of the lesser included
offense of aggravated sexual assault of a child.
       [3] If you find from the evidence beyond a reasonable doubt
that the defendant, [Appellant], in Tarrant County, Texas, on or
about the 1st day of September 2011[] did then and there
intentionally or knowingly cause the sexual organ of [Complainant], a
child younger than 14 years of age, to contact the mouth of the
defendant, then you will find the defendant guilty of the lesser
included offense of aggravated sexual assault of a child.


                                  18
             Unless you so find from the evidence beyond a reasonable
      doubt, or if you have a reasonable doubt thereof, you will acquit the
      defendant and say by your verdict “Not Guilty” of the lesser included
      offense of aggravated sexual assault of a child.
             [4] If you find from the evidence beyond a reasonable doubt
      that the defendant, [Appellant], in Tarrant County, Texas, on or
      about the 1st day of September[] 2011[] did then and there
      intentionally, with the intent to arouse or gratify the sexual desire of
      said defendant, engage in sexual contact by touching the genitals of
      [Complainant], a child younger than 17 years of age; you will find the
      defendant guilty of the lesser included offense of indecency with a
      child.
             Unless you so find from the evidence beyond a reasonable
      doubt, or if you have a reasonable doubt thereof, you will acquit the
      defendant and say by your verdict “Not Guilty” of the lesser included
      offense of indecency with a child.
             [5] If you find from the evidence beyond a reasonable doubt
      that the defendant, [Appellant], in Tarrant County, Texas on or about
      the 1st day of September 2011[] did then and there intentionally,
      with intent to arouse or gratify the sexual desire of said defendant,
      engage in sexual contact by touching the anus of [Complainant], a
      child younger than 17 years of age, then you will find the defendant
      guilty of the lesser included offense of indecency with a child.
             Unless you so find from the evidence beyond a reasonable
      doubt, or if you have a reasonable doubt thereof, you will acquit the
      defendant and say by your verdict “Not Guilty” of the lesser included
      offense of indecency with a child.

The charge then provided six not guilty/guilty forms. The first one was for Count
One—the continuous sexual abuse of a child—which was joined by an “or” with
the remaining five lesser-included offenses. Thereafter, there was one for the
lesser-included offense of aggravated sexual assault of a child “and/or” for the
lesser-included offense of aggravated sexual assault of a child “and/or” for the
lesser-included offense of aggravated sexual assault of a child “and/or” for the
lesser-included offense of indecency with a child “and/or” the lesser-included
offense of indecency with a child. The jury found Appellant not guilty of “Count
One” and not guilty of the three lesser-included offenses of aggravated sexual
assault of a child, but it found Appellant guilty of the two lesser-included offenses
of indecency with a child. Because the verdict forms are hard to follow, we
provide them below.




                                         19
                         VERDICT FORMS

                            COUNT ONE

      We, the jury, find the defendant, [Appellant], not guilty of the
offense of continuous sexual abuse of a child as charged in Count
One of the indictment.

                                [/s/ Presiding Juror]
                                PRESIDING JUROR

                                 OR

      We, the jury, find the defendant, [Appellant], guilty of the
offense of continuous sexual abuse of a child as charged in Count
One of the indictment.

                                _______________
                                PRESIDING JUROR

                                 OR

                   VERDICT FORMS (Continued)

       [1] We, the jury, find the defendant, [Appellant], not guilty of
the lesser included offense of aggravated sexual assault of a child.

                                [/s/ Presiding Juror]
                                PRESIDING JUROR

                                 OR

      We, the jury, find the defendant, [Appellant], guilty of the
lesser included offense of aggravated sexual assault of a child.

                                _______________
                                PRESIDING JUROR

                              AND/OR

       [2] We, the jury, find the defendant, [Appellant], not guilty of
the lesser included offense of aggravated sexual assault of a child.




                                  20
                                [/s/ Presiding Juror]
                                PRESIDING JUROR

                                 OR

      We, the jury, find the defendant, [Appellant], guilty of the
lesser included offense of aggravated sexual assault of a child.

                                _______________
                                PRESIDING JUROR

                              AND/OR

                   VERDICT FORMS (Continued)

       [3] We, the jury, find the defendant, [Appellant], not guilty of
the lesser included offense of aggravated sexual assault of a child.

                                [/s/ Presiding Juror]
                                PRESIDING JUROR

                                 OR

      We, the jury, find the defendant, [Appellant], guilty of the
lesser included offense of aggravated sexual assault of a child.

                                _______________
                                PRESIDING JUROR

                              AND/OR

       [4] We, the jury, find the defendant, [Appellant], not guilty of
the lesser included offense of indecency with a child.

                                _______________
                                PRESIDING JUROR

                                 OR

      We, the jury, find the defendant, [Appellant], guilty of the
lesser included offense of indecency with a child.

                                [/s/ Presiding Juror]
                                PRESIDING JUROR


                                  21
                              AND/OR

                   VERDICT FORMS (Continued)

       [5] We, the jury, find the defendant, [Appellant], not guilty of
the lesser included offense of indecency with a child.

                                _______________
                                PRESIDING JUROR

                                 OR

      We, the jury, find the defendant, [Appellant], guilty of the
lesser included offense of indecency with a child.

                                [/s/ Presiding Juror]
                                PRESIDING JUROR




                                  22
