                                                                             PD-1631-15
                                                            COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
DECEMBER 18, 2015                                         Transmitted 12/17/2015 9:45:52 AM
                                                            Accepted 12/18/2015 3:14:04 PM
                        NO. ___________________                              ABEL ACOSTA
                                                                                     CLERK

             IN THE COURT OF CRIMINAL APPEALS OF TEXAS




                    CHARLIE LEE STEWART, SR.

                                   v.

                      THE STATE OF TEXAS


                     From the Austin Court of Appeals
                        Cause No. 03-13-00803-CR


              APPELLANT CHARLIE LEE STEWART, SR.’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
                                        Waco, Texas 76710
                                        Telephone: (254) 772-8022
                                        Telecopier: (254) 772-9297
                                        Email: abennett@slmpc.com
                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. Fancy J. Jezek                                        Trial Court Judge
426th District Court, Bell County
P.O. Box 324
Belton, Texas 76513

THE DEFENSE:

Charlie Lee Stewart, Sr.                                          Appellant

John Galligan                                                  Trial Counsel
315 South Main Street
Belton, Texas 76513

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




Appellant Charlie Lee Stewart, Sr.’s PDR                               Page 2
THE STATE:

Shelly Dawn Strimple                           Trial Counsel
Stephanie Newell
Assistant District Attorneys

Bob D. Odom                                Appellate Counsel
Assistant District Attorney

Henry Garza
Bell County District Attorney
P.O. Box 540
Belton, Texas 76513




Appellant Charlie Lee Stewart, Sr.’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 ............................................................... 9

Statement of the Case ......................................................................................... 9

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

Ground for Review ............................................................................................10

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

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

  1. The Austin Court erred by failing to follow its “first duty” and address
  Appellant’s claim of error in the jury charge. ..............................................11

      A. An Appellate Court’s “First Duty” Is to Address the Merits of a Jury
      Charge Complaint. ......................................................................................11

      B. Jurisprudential Reasons Dictate That the Error Claim Be
      Addressed. ...................................................................................................13


         1.     The Charge Must Accurately State the Law. ................................14

         2. The Charge Must Tailor the Definitions of the Culpable Mental
         States to Correspond to the Applicable Conduct Elements. ...............15



Appellant Charlie Lee Stewart, Sr.’s PDR                                                                      Page 4
         3.      Texas Trial Courts Need Guidance on This Unsettled Issue.......16

         4.      The Standard Definition for “Penetration” Is Improper..............17

      C.      Summary. ............................................................................................18

      D.      The Court Should Grant Review on This Issue. ..............................19


Prayer ..................................................................................................................21

Certificate of Compliance ..................................................................................22

Certificate of Service ..........................................................................................22

Appendix ............................................................................................................23




Appellant Charlie Lee Stewart, Sr.’s PDR                                                                          Page 5
                                           Index of Authorities

                                                     Texas Cases

Arline v. State, 721 S.W.2d 348 (Tex. Crim. App. 1986) ...................................12

Arriaga v. State, No. 05-09-815-CR, 2010 WL 2404693 (Tex. App.—Dallas June
17, 2010, pet. ref’d) .............................................................................................17

Barrios v. State, 283 S.W.3d 348 (Tex. Crim. App. 2009)..................................12

Brown v. State, 122 S.W.3d 794 (Tex. Crim. App. 2003) ..................................17

Cook v. State, 884 S.W.2d 485 (Tex. Crim. App. 1994) .....................................15

Deener v. State, 214 S.W.3d 522 (Tex. App.—Dallas 2006, pet. ref’d) ............13

Dinkins v. State, 894 S.W.2d 330 (Tex. Crim. App. 1994) ................................14

Garza v. State, 2006 WL 668386 (Tex. App.—Beaumont Mar. 15, 2006, pet.
ref’d) ....................................................................................................................13

Glockzin v. State, 220 S.W.3d 140 (Tex. App.—Waco 2007, pet. ref’d) ...........13

Gonzalez Soto v. State, 267 S.W.3d 327 (Tex. App.—Corpus Christi 2008, no
pet.) ......................................................................................................................13

Herrera v. State, No. 04-08-931-CR, 2009 WL 4981327 (Tex. App.—San
Antonio Dec. 23, 2009, pet. dism’d, untimely filed) .......................................17

Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996) ...................................14

Lee v. State, 442 S.W.3d 569 (Tex. App.—San Antonio 2014, no pet.)............13

Lovings v. State, 376 S.W.3d 328 (Tex. App.—Houston [14th Dist.] 2012, no
pet.) ......................................................................................................................13

McGee v. State, 2015 WL 3799362 (Tex. App.—Eastland June 11, 2015, no pet.)
..............................................................................................................................12

Michaelwicz v. State, 186 S.W.3d 601 (Tex. App.—Austin 2006, pet. ref’d) ...13


Appellant Charlie Lee Stewart, Sr.’s PDR                                                                              Page 6
Moreno v. State, No. 09-02-490-CR, 2003 WL 22351320 (Tex. App.—Beaumont
Oct. 15, 2003, no pet.) (per curiam)...................................................................17

Murray v. State, 804 S.W.2d 279 (Tex. App.—Fort Worth 1991, pet. ref’d) ...16

Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) ......................................12

Phillips v. State, 463 S.W.3d 59 (Tex. Crim. App. 2014) ...................................12

Price v. State, 457 S.W.3d 437 (Tex. Crim. App. 2015) .....................................15

Ragan v. State, 2013 WL 6797734 (Tex. App.—Tyler Dec. 20, 2013, no pet.) .13

Rawlings v. State, 874 S.W.2d 740 (Tex. App.—Fort Worth 1994, no pet.) ....18

Rodriguez v. State, 456 S.W.3d 271 (Tex. App.—Houston [1st Dist.] 2014, pet.
ref’d) ....................................................................................................................12

Sakil v. State, 287 S.W.3d 23 (Tex. Crim. App. 2009) .......................................14

Saldivar v. State, 783 S.W.2d 265 (Tex. App.—Corpus Christi 1989, no pet.)16

Turcios v. State, No. 12-12-066-CR, 2013 WL 1760798 (Tex. App.—Tyler Apr.
24, 2013, no pet.) .................................................................................................17

Vanover v. State, 2014 WL 4351416 (Tex. App.—Texarkana Sept. 3, 2014, pet.
ref’d) ....................................................................................................................12

Vasquez v. State, 389 S.W.3d 361 (Tex. Crim. App. 2012) ................................14

Villarreal v. State, 286 S.W.3d 321 (Tex. Crim. App. 2009) ..............................14

Wagner v. State, No. 08-09-021-CR, 2010 WL 2163845 (Tex. App.—El Paso
May 28, 2010, pet. ref’d) ....................................................................................16

Williams v. State, 547 S.W.2d 18 (Tex. Crim. App. 1977).................................14

Wilson v. State, 905 S.W.2d 46 (Tex. App.—Corpus Christi 1995, no pet.) ...18




Appellant Charlie Lee Stewart, Sr.’s PDR                                                                           Page 7
                                             Texas Statutes

TEX. CODE CRIM. PROC. art. 36.14 .......................................................................14



                                                    Rules

TEX. R. APP. P. 66.3 .................................................................................. 10, 19, 20



                                                  Treatises

43 GEORGE E. DIX. & JOHN M. SCHMOLESKY, TEXAS PRACTICE SERIES: CRIMINAL
PRACTICE AND PROCEDURE § 43:5 (3d ed. 2011) ................................................15




Appellant Charlie Lee Stewart, Sr.’s PDR                                                                 Page 8
                  Statement Regarding Oral Argument
      Appellant does not believe that oral argument will aid the decisional

process. However, should the Court decide differently, Appellant

respectfully requests the opportunity to appear and present oral argument.




                              Statement of the Case

       A jury convicted Appellant of continuous sexual abuse of a young

child. The trial court assessed his punishment and sentenced Appellant to 60

years’ imprisonment.




                       Statement of Procedural History

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

unanimous opinion authored by Justice Bourland that was handed down

November 17, 2015. No motion for rehearing was filed.




Appellant Charlie Lee Stewart, Sr.’s PDR                              Page 9
                                Ground for Review


        1.   The Austin Court erred by failing to follow its “first duty” and
             address Appellant’s claims of error in the jury charge.




                         Reasons for Granting Review

        The Court should grant discretionary review in this appeal because the

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

numerous other court of appeals’ decisions, including its own; (2) has left

undecided important questions of state law that have not been, but should

be, settled by this Court; (3) has decided important questions of state law in

a way that conflicts with the applicable decisions of this Court; (4) has

misconstrued article 36.19 of the Code of Criminal Procedure; and (5) 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 Charlie Lee Stewart, Sr.’s PDR                               Page 10
                                      Argument

1.    The Austin Court erred by failing to follow its “first duty” and
      address Appellant’s claim of error in the jury charge.


      For nearly three decades, this Court has made clear that an appellate

court’s “first duty” in evaluating an appellate complaint of charge error is to

determine whether the charge was erroneous. Texas appellate courts

(including the Austin Court) have regularly recited this principle. However,

when the Austin Court considered Appellant’s claims regarding errors in

the charge, it skipped its “first duty” and proceeded straight to the issue of

harm. For the reasons set forth, this Court should remand for the Austin

Court to properly address the issue presented.

A.    An Appellate Court’s “First Duty” Is to Address the Merits of a Jury
      Charge Complaint.

      Since this Court’s seminal decision in Almanza, the Court has made

clear that an appellate court’s first responsibility in evaluating a claim of

error in the jury charge is to determine whether there is error in the charge

as claimed.

      “Our first duty in analyzing a jury-charge issue is to decide whether

error exists. If we find error, a harm analysis must then be done.” Phillips v.


Appellant Charlie Lee Stewart, Sr.’s PDR                                Page 11
State, 463 S.W.3d 59, 64-65 (Tex. Crim. App. 2014) (emphasis added). The

Court has so held on numerous occasions. See, e.g., Barrios v. State, 283 S.W.3d

348, 350 (Tex. Crim. App. 2009); Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim.

App. 2005).

      The first iteration of this settled principle appeared in the Court’s

decision in Arline where the Court undertook to restate the standard of

review established by Almanza.

      In Almanza, this Court held that Article 36.19, V.A.C.C.P. (1974),
      prescribes the manner in which jury charge error is reviewed on
      appeal. Instead of automatically reversing convictions for
      technical charging errors, an appellate court must undertake a
      two-step process of review. First, an appellate court must
      determine whether error exists in the charge. Second, the
      appellate court must determine whether sufficient harm was
      caused by the error to require reversal of the conviction.

Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (emphasis added)

(citations omitted).

      Texas intermediate appellate courts (including this one) have virtually

all cited this principle. See, e.g., McGee v. State, 2015 WL 3799362, at *3 (Tex.

App.—Eastland June 11, 2015, no pet.); Rodriguez v. State, 456 S.W.3d 271,

280 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d); Vanover v. State, 2014

WL 4351416, at *1 (Tex. App.—Texarkana Sept. 3, 2014, pet. ref’d); Lee v.



Appellant Charlie Lee Stewart, Sr.’s PDR                                  Page 12
State, 442 S.W.3d 569, 576-77 (Tex. App.—San Antonio 2014, no pet.); Ragan

v. State, 2013 WL 6797734, at *3 (Tex. App.—Tyler Dec. 20, 2013, no pet.);

Lovings v. State, 376 S.W.3d 328, 337 (Tex. App.—Houston [14th Dist.] 2012,

no pet.); Gonzalez Soto v. State, 267 S.W.3d 327, 334 (Tex. App.—Corpus

Christi 2008, no pet.); Glockzin v. State, 220 S.W.3d 140, 148 (Tex. App.—Waco

2007, pet. ref’d); Deener v. State, 214 S.W.3d 522, 528 (Tex. App.—Dallas 2006,

pet. ref’d); Garza v. State, 2006 WL 668386, at *1 (Tex. App.—Beaumont Mar.

15, 2006, pet. ref’d); Michaelwicz v. State, 186 S.W.3d 601, 622 (Tex. App.—

Austin 2006, pet. ref’d).

      Despite the regular recitation of this principle by Texas appellate

courts, as demonstrated in Appellant’s case, the Austin Court (and others)

pay only lip service to this principle.

B.    Jurisprudential Reasons Dictate That the Error Claim Be Addressed.

      An appellate court should first address whether error exists in the

charge as alleged because: (1) the litigants are entitled to a charge that

accurately states the law and instructs the jury accordingly; (2) trial courts

are required to submit a jury charge that properly tailors the definitions of

the culpable mental states to the “conduct element(s)” of the offense alleged;




Appellant Charlie Lee Stewart, Sr.’s PDR                                Page 13
and (3) trial courts need guidance from the appellate courts, especially when

the issue is unsettled.

1.    The Charge Must Accurately State the Law.

      Article 36.14 of the Code of Criminal Procedure requires a trial court

to furnish “a written charge [to the jury] distinctly setting forth the law

applicable to the case.” TEX. CODE CRIM. PROC. art. 36.14.

            The purpose of the trial judge’s jury charge is to instruct
      the jurors on all of the law that is applicable to the case. “Because
      the charge is the instrument by which the jury convicts, [it] must
      contain an accurate statement of the law and must set out all the
      essential elements of the offense.”

Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012) (quoting Dinkins

v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1994)) (footnotes omitted).

      “It is not the function of the charge merely to avoid misleading or

confusing the jury; it is the function of the charge to lead and to prevent

confusion.” Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996)

(quoting Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977)); accord

Sakil v. State, 287 S.W.3d 23, 26 (Tex. Crim. App. 2009).

      For these reasons, “each statutory definition that affects the meaning

of an element of the offense must be communicated to the jury” in the charge.

Villarreal v. State, 286 S.W.3d 321, 329 (Tex. Crim. App. 2009) (quoting 43


Appellant Charlie Lee Stewart, Sr.’s PDR                                  Page 14
GEORGE E. DIX. & JOHN M. SCHMOLESKY, TEXAS PRACTICE SERIES: CRIMINAL

PRACTICE AND PROCEDURE § 43:5 (3d ed. 2011). Here, Appellant’s complaint

related to errors in the definitions submitted in the charge. A criminal

defendant (and the State for that matter) is entitled to a jury charge that

includes proper definitions—especially, when he calls such errors to the trial

court’s attention.

2.    The Charge Must Tailor the Definitions of the Culpable Mental
      States to Correspond to the Applicable Conduct Elements.


      “A trial court errs when it fails to limit the language in regard to the

applicable culpable mental states to the appropriate conduct element.” Price

v. State, 457 S.W.3d 437, 441 (Tex. Crim. App. 2015) (citing Cook v. State, 884

S.W.2d 485, 491 (Tex. Crim. App. 1994)).

      This error by the trial court was the basis of Appellant’s complaint.

Nevertheless, the Austin Court ignored the merits and fast forwarded

straight to the question of harm. The court never stated clearly and

unequivocally that the charge contained error. Why was it so difficult for the

Austin Court to address the complaint of charge error properly preserved in

the trial court?




Appellant Charlie Lee Stewart, Sr.’s PDR                                Page 15
3.    Texas Trial Courts Need Guidance on This Unsettled Issue.

      Appellant urged that a decision by the Eastland Court regarding the

conduct elements for aggravated sexual assault would apply to the offense

of continuous sexual assault in which the underlying offense was

aggravated sexual assault. See Baker v. State, 94 S.W.3d 684, 690 (Tex. App.—

Eastland 2002, no pet.).

      The Austin Court and Waco Court have both recognized that this issue

is unsettled. See Reed v. State, 421 S.W.3d 24, 28 (Tex. App.—Waco 2013, pet.

ref’d); Belmares v. State, No. 03-11-121-CR, 2011 WL 5865236, at *2 (Tex.

App.—Austin Nov. 23, 2011, pet. ref’d). However, characterizing the issue

as “unsettled” is a gross understatement. Other than the Eastland Court,

Texas appellate courts have been avoiding deciding this issue for at least 25

years in sexual assault cases. See, e.g., Wagner v. State, No. 08-09-021-CR, 2010

WL 2163845, at *5 (Tex. App.—El Paso May 28, 2010, pet. ref’d); Murray v.

State, 804 S.W.2d 279, 281 (Tex. App.—Fort Worth 1991, pet. ref’d); Saldivar

v. State, 783 S.W.2d 265, 267-68 (Tex. App.—Corpus Christi 1989, no pet.).

      Without further guidance from appellate courts, Texas trial courts are

left scratching their heads when called upon to decide which conduct

elements apply to a charge of continuous sexual abuse.


Appellant Charlie Lee Stewart, Sr.’s PDR                                  Page 16
4.    The Standard Definition for “Penetration” Is Improper.

      Appellant also challenged the non-statutory definition of the term

“penetration” submitted in the charge by the trial court. It was an improper

comment on the evidence.

      “Texas courts are forbidden from instructing the jury on any

presumption or evidentiary sufficiency rule that does not have a statutory

basis.” Brown v. State, 122 S.W.3d 794, 799 (Tex. Crim. App. 2003). The non-

statutory definition submitted by the trial court plainly violates this

principle.

      Even though this definition has no statutory basis, numerous appellate

courts have approved an instruction like the one submitted in Appellant’s

case. See, e.g., Turcios v. State, No. 12-12-066-CR, 2013 WL 1760798, at *5 (Tex.

App.—Tyler Apr. 24, 2013, no pet.) ; Arriaga v. State, No. 05-09-815-CR, 2010

WL 2404693, at *3 (Tex. App.—Dallas June 17, 2010, pet. ref’d); Herrera v.

State, No. 04-08-931-CR, 2009 WL 4981327, at *7 (Tex. App.—San Antonio

Dec. 23, 2009, pet. dism’d, untimely filed); Moreno v. State, No. 09-02-490-CR,

2003 WL 22351320, at *3 (Tex. App.—Beaumont Oct. 15, 2003, no pet.) (per

curiam); Wilson v. State, 905 S.W.2d 46, 48-49 (Tex. App.—Corpus Christi




Appellant Charlie Lee Stewart, Sr.’s PDR                                  Page 17
1995, no pet.); Rawlings v. State, 874 S.W.2d 740, 744-45 (Tex. App.—Fort

Worth 1994, no pet.).

      Therefore, the jurisprudential reasons described above dictate that the

Austin Court should have directly addressed whether the charged contained

error. Otherwise, these settled principles governing Texas criminal jury

charges have little value or meaning if an appellate court can simply

disregard them if that court determines that a charge error is harmless

without taking the time to perform its adjudicative function and determine

whether the charge in fact contained error.

C.    Summary.

      The Austin Court erred by failing to observe its “first duty” and plainly

address the issue of whether the charge was erroneous. An appellate court

should consistently and faithfully follow this requirement because: (1) a jury

charge is required to provide the jury (virtually always laypersons) with

accurate definitions and instructions; (2) a jury charge must tailor the

relevant culpable mental state(s) to the conduct element(s) of the offense

charged; and (3) Texas trial courts need guidance to properly carry out their

responsibilities with regard to the jury charge, particularity concerning

unsettled issues like those presented here.


Appellant Charlie Lee Stewart, Sr.’s PDR                                Page 18
D.    The Court Should Grant Review on This Issue.

      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 Austin Court’s decision appears to conflict with the decisions of

numerous intermediate appellate courts (including the Austin Court’s own

decision) with regard to an appellate court’s obligation to address whether

a jury charge contains error. Id. 66.3(a).

      The Austin Court has left undecided important questions of state law

that have not been, but should be, settled by this Court, namely: (1) which

conduct elements apply to the offense of continuous sexual abuse; and (2)

whether the non-statutory definition of penetration constitutes a comment

on the evidence. Id. 66.3(b).

      The Austin Court’s decision conflicts with the applicable decisions of

this Court regarding an appellate court’s “first duty” to address a claim of

error in the jury charge and regarding comments on the evidence. Id. 66.3(c).

      The Austin Court appears to have misconstrued article 36.19 of the

Code of Criminal Procedure which governs judicial review of errors in the

charge. Id. 66.3(d).




Appellant Charlie Lee Stewart, Sr.’s PDR                              Page 19
      And finally, the Austin Court 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. Id. 66.3(f).

      For these reasons, this Court should grant this ground for

discretionary review.




Appellant Charlie Lee Stewart, Sr.’s PDR                            Page 20
                                       Prayer

      WHEREFORE, PREMISES CONSIDERED, Appellant Charlie Lee

Stewart, Sr. 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 Charlie Lee Stewart, Sr.’s PDR                                 Page 21
                          Certificate of Compliance


      The undersigned hereby certifies, pursuant to Rule of Appellate

Procedure 9.4(i)(3), that this computer-generated document contains 3,151

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 December 17, 2015 to: (1) counsel for the

State, Bob Odom, bob.odom@co.bell.tx.us; and (2) the State Prosecuting

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



                                             /s/ Alan Bennett
                                           E. Alan Bennett




Appellant Charlie Lee Stewart, Sr.’s PDR                             Page 22
                                    Appendix



Opinion of Austin Court of Appeals:

      Stewart v. State, No. 03-13-00803-CR, 2015 WL 7424736 (Tex. App.—
      Austin Nov. 17, 2015, pet. filed)




Appellant Charlie Lee Stewart, Sr.’s PDR                         Page 23
      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-13-00803-CR



                                Charlie L. Stewart, Sr., Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
           NO. 70,638, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING



                             MEMORANDUM OPINION

               A jury convicted appellant Charlie L. Stewart, Sr. of continuous sexual abuse of a

young child, and the trial court assessed punishment at sixty years’ imprisonment. See Tex. Penal

Code § 21.02. In three issues, appellant contends that the jury charge contained three errors that each

resulted in egregious harm. We will affirm the trial court’s judgment.


                                         BACKGROUND

               The record shows that appellant is T.M.’s paternal grandfather and that T.M. lived

in appellant’s home during her sixth-grade year and some of the following summer in 2012. While

T.M. was visiting her mother that summer, T.M. told her mother that appellant had been sexually

abusing her by putting his sexual organ into her sexual organ. T.M. further told her mother that the

abuse had been happening “for quite a while” and that the most recent incident occurred the previous
week. Based on T.M.’s outcry, her mother took her to the hospital, where a forensic nurse conducted

an examination. The forensic nurse then called the police, who began an investigation.

               At trial, T.M. testified about the abuse, stating that appellant went into her bedroom

at night and had sexual intercourse with her “a lot” during her sixth-grade year and “in different

months” over that time period. In addition to T.M.’s testimony, three other women—appellant’s

niece, appellant’s great-niece, and a daughter of appellant’s friend—also testified that appellant had

sexually abused them when they were minors. One of the women testified that she reported the

sexual assault years ago after it occurred and that the case was investigated and went to court in

Mississippi. The State introduced evidence showing that appellant pled guilty to the offense,

although appellant insisted at trial that he pled no contest.

               The forensic nurse who examined T.M. testified about T.M.’s account of the sexual

abuse. The nurse further testified that an examination of T.M. revealed redness and skin breakdown

inside her sexual organ that could be caused by sexual intercourse or poor hygiene and that the nurse

did not believe it was caused by poor hygiene. In addition, a portion of the mattress taken from

T.M.’s bed at appellant’s house had a semen stain containing sperm that was tested and found to be

consistent with appellant’s DNA.

               Appellant testified at trial and denied all allegations of sexual abuse. At the

conclusion of trial, the jury found appellant guilty of continuous sexual abuse of T.M. The trial court

then assessed punishment at sixty years’ imprisonment. This appeal followed.




                                                  2
                                            DISCUSSION

                In three issues, appellant argues that the trial court made the following errors in the

jury charge: (1) failing to sua sponte instruct the jury to disregard evidence obtained by T.M.’s

mother during the investigation if the jury determined that the evidence was unlawfully obtained;

(2) failing to properly define the terms “intentionally” and “knowingly”; and (3) submitting an

erroneous instruction regarding the term “penetration.”

                In reviewing claims of jury-charge error, we first determine if there was error, and,

if there was error, we then decide whether the error caused sufficient harm to warrant a reversal.

Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Kuhn v. State, 393 S.W.3d 519, 524

(Tex. App.—Austin 2013, pet. ref’d). The amount of harm necessary to warrant a reversal depends

on whether the defendant objected to the jury charge. Ngo, 175 S.W.3d at 743; Kuhn, 393 S.W.3d

at 524. If the defendant preserved error with a timely objection in the trial court, the record need

only show “some harm” to warrant a reversal. Ngo, 175 S.W.3d at 743; Kuhn, 393 S.W.3d at 524.

If the defendant did not preserve error, we will reverse only if the record shows “egregious harm.”

Ngo, 175 S.W.3d at 743-44; Kuhn, 393 S.W.3d at 524. In this case, appellant made no objections

to the jury charge at trial, making his complaints on appeal subject to an “egregious harm” analysis

in the event he shows the existence of an error.

                Under the “egregious harm” standard, reversal is required only if appellant

suffered harm so egregious that he was denied a fair and impartial trial. See Barrios v. State,

283 S.W.3d 348, 350 (Tex. Crim. App. 2009). In determining whether appellant was deprived of

a fair and impartial trial, we review (1) the entire jury charge; (2) the state of the evidence, including



                                                    3
contested issues and the weight of probative evidence; (3) the argument of counsel; and (4) any other

relevant information revealed by the record as a whole. Taylor v. State, 332 S.W.3d 483, 489 (Tex.

Crim. App. 2011); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).

Egregious harm means the charge error affected the very basis of the case, deprived the defendant

of a valuable right, vitally affected a defensive theory, or made a case for conviction clearly and

significantly more persuasive. Taylor, 332 S.W.3d at 490; Almanza, 686 S.W.2d at 172.

                We need not decide whether the trial court erred in the three instances alleged by

appellant because even assuming all three errors occurred, we conclude that the errors would be

harmless. Because the evidence presented by the record is a relevant consideration for all three of

appellant’s issues, we will address the evidence in detail here before applying it to each of the

issues below.

                A review of the record in this case shows that the evidence of appellant’s guilt was

extensive. T.M. testified that appellant had sexual intercourse with her “a lot” and over a period of

months during her sixth-grade year. T.M. testified that the sexual abuse occurred on the bed in

which she slept at appellant’s house or on the floor next to the bed.               Three additional

witnesses—T.M.’s mother, a forensic nurse, and a forensic interviewer—all testified about T.M.’s

separate accounts of the sexual abuse, and all of the accounts included allegations that appellant put

his sexual organ into T.M.’s sexual organ. The forensic nurse further testified that T.M. had redness

and skin breakdown in her sexual organ that could be evidence of sexual intercourse or poor hygiene

and that the damage likely was not from poor hygiene because T.M. appeared to have good hygiene.




                                                  4
                In addition to the evidence of appellant’s sexual abuse of T.M., three other women

testified that appellant sexually assaulted them when they were minors.1 The first woman,

appellant’s great-niece, was nineteen years old at the time of trial and testified that appellant drove

her to a deserted area and raped her when she was in seventh grade. The woman testified that she

told her grandmother about the assault when she got home, but her grandmother did not believe her.

The woman further testified that appellant wrote her a letter from jail during the investigation into

T.M.’s allegations. In the letter, which was admitted into evidence at trial and which appellant

acknowledged writing, appellant asked the woman to recant her accusation against him and provided

a recantation for her to type and provide to investigators. Appellant also told the woman in the letter

not to tell anyone about the letter and to destroy it after she typed the recantation.

                The second woman who testified was appellant’s niece and was thirty-six years old

at the time of trial. She testified that appellant sexually assaulted her on three separate occasions,

all when she was sixteen years old or younger—once in Mississippi, once at his home in Texas, and

once after he picked her up from summer school in Texas and drove her to a deserted area. After

the assault in Mississippi, the woman told her guidance counselor what happened, and the counselor

called the police. A “criminal affidavit” from the Mississippi case was admitted into evidence at

trial, and the affidavit indicated that appellant pled guilty to the offense. Appellant insisted at trial

that he believed he pled no contest.


        1
           At a pre-trial hearing regarding the State’s notice of intent to introduce extraneous offenses,
the trial court ruled that the testimony of the other women was admissible under article 38.37 of the
Texas Code of Criminal Procedure and Rule 404(b) of the Texas Rules of Evidence. See Tex. Code
Crim. Proc. art. 38.37; Tex. R. Evid. 404(b). On appeal, appellant does not raise an issue about the
admissibility of the testimony.

                                                    5
                The third woman who testified was thirty-five years old at the time of trial and

testified that her parents were friends with appellant when she was a child and that she would

sometimes spend the night at appellant’s home when she was ten or eleven years old. She testified

that during one of the nights she stayed at appellant’s home, he came into her bedroom and tried to

have sexual intercourse with her. When she tried to scream, he covered her mouth and told her he

would kill her if she did not stay quiet. The woman later told her parents and appellant’s wife about

the assault, but none of them believed her. The woman testified that her parents continued to send

her to sleep over at appellant’s house after her outcry, but because of the outcry, appellant’s wife

made her sleep in the master bed with appellant and his wife. There, appellant would reach over his

wife after she fell asleep and rub the woman on her side, hip, and leg.

                In addition to the evidence set forth above, a forensic scientist also testified that a

semen stain containing sperm was found on a portion of the mattress top of the bed in which T.M.

slept in appellant’s home, and a second forensic scientist testified that tests confirmed to a reasonable

degree of scientific certainty that appellant was the source of the DNA in the stain. In a pre-trial

interrogation, appellant denied participating in any sexual activity in T.M.’s bedroom. At trial, he

testified that he slept on the bed for the month of August 2008 (approximately four years before

T.M.’s outcry) because of back problems.

                Taking into consideration the considerable evidence admitted at trial, we now turn

to each of appellant’s arguments alleging error in the jury charge.




                                                   6
Lack of Article 38.23 Instruction

               In his first issue, appellant contends that the trial court failed to sua sponte include

an instruction in the jury charge directing the jury to disregard evidence regarding T.M.’s underwear,

which were obtained from appellant’s home by T.M.’s mother, if the jury determined that

the evidence was unlawfully obtained.           Evidence at trial showed that an investigator,

Sergeant David LaCroix, spoke with T.M.’s mother early in the investigation and that the two of

them discussed the possibility that T.M.’s mother could get some of T.M.’s underwear from the dirty

laundry at appellant’s home for use in the investigation. Sergeant LaCroix told T.M.’s mother that

she could bring the underwear in for testing if she had access to them. T.M.’s mother then asked

appellant if she could do laundry at his home, and while in his home, she collected T.M.’s underwear

from the dirty laundry and took them to the police station.

               Appellant argues that the testimony about T.M.’s mother’s retrieval of the evidence

raised a fact issue as to whether she acted unlawfully and as an agent of the State when she retrieved

the evidence. Appellant contends that the trial court therefore should have included an appropriate

instruction in the jury charge pursuant to article 38.23 of the Texas Code of Criminal Procedure,

which states the following:


               No evidence obtained by an officer or other person in violation of any
               provisions of the Constitution or laws of the State of Texas, or of the
               Constitution or laws of the United States of America, shall
               be admitted in evidence against the accused on the trial of any
               criminal case.

               In any case where the legal evidence raises an issue hereunder, the
               jury shall be instructed that if it believes, or has a reasonable doubt,
               that the evidence was obtained in violation of the provisions of this

                                                  7
                Article, then and in such event, the jury shall disregard any such
                evidence so obtained.


Tex. Code Crim. Proc. art. 38.23(a).

                Appellant did not request the above instruction or object to the absence of the

instruction at trial and must therefore show egregious harm as a result of the instruction’s absence.

In addition to the extensive evidence of appellant’s guilt detailed above, the record also shows that

the underwear were not strong evidence of appellant’s guilt. Two pairs of T.M.’s underwear were

tested, and one pair tested negative for the presence of a potential semen stain. The other pair tested

positive for a potential semen or vaginal-fluid stain and then tested negative for spermatoza. The

forensic scientist did not recover any DNA from either pair of underwear. The evidence taken from

the underwear was not adverse to appellant other than the potential semen stain on one pair that did

not contain spermatoza and therefore could have been a vaginal-fluid stain.

                Further, a review of the record shows that the State did not mention the evidence

regarding the underwear in closing argument but instead relied on all of the other evidence of

appellant’s guilt in arguing for a conviction. In defense counsel’s closing argument, he not only

addressed his concerns about the propriety of the conduct of Sergeant LaCroix and T.M.’s mother

but also used the evidence of T.M.’s mother’s retrieval of the underwear in order to reinforce an

ongoing defensive theory that T.M.’s mother spearheaded a conspiracy to convict appellant of sexual

assault.2 Specifically, defense counsel pointed out the alleged impropriety of Sergeant LaCroix and


        2
           Among other implications from the defense that T.M.’s mother had a problem with
appellant and caused the victims to fabricate their accusations, appellant testified that his relationship
with T.M.’s mother “fundamentally changed” in early 2012 (approximately four months before

                                                    8
T.M.’s mother’s actions in T.M.’s mother’s retrieval of the evidence and then argued that “the

relationship or agreement that seemed to be understood between [T.M.’s mother] and the police

officer that night for her to go and get the panties is an indication of [T.M.’s mother’s] intent

to control the case.”    During the case-in-chief, defense counsel also cross-examined and



T.M.’s outcry) when T.M.’s mother “attack[ed]” him in his home and called the police, accusing him
of harming her. He testified that after the incident, he told T.M.’s mother that she was no longer
welcome in his home. During cross-examination, appellant testified more explicitly about his theory
in the following exchange between him and the prosecutor:

               Prosecutor:    And what you’re telling the jury is, these women and
                              this child who are speaking of abuse over a span of 20
                              years or more are all lying?
               Appellant:     Yes, they’re all lying. And it’s one person that’s controlling them.
               Prosecutor:    They have all made this up to get back at you for some reason?
               Appellant:     Yes, ma’am.
               Prosecutor:    Who knows what, but for some reason all four of these victims have
                              something against you—
               Appellant:     No—
               Prosecutor:    —correct?
               Appellant:     —I didn’t say they have anything against me. It’s one
                              person that are [sic] manipulating these three people.
               Prosecutor:    I’m speaking of four persons, sir.
               Appellant:     [The final woman who testified about sexual abuse] is
                              not in the—in the equation.
               Prosecutor:    How is she—
               Appellant:     [She]—
               Prosecutor:    —not in the equation, sir?
               Appellant:     Reason I say she’s not in the equation because [she] is
                              not being manipulated by [T.M.’s mother]. The only
                              thing that manipulates [the final woman who testified]
                              is the fact that she has a problem with her parents.
                              This is a time for her also to take and get revenge for
                              whatever she feels that her parents done to her.
               Prosecutor:    So all of these women have some conspiracy between
                              the four of them to lie about you having sex
                              with them?
               Appellant:     Yes, ma’am.

                                                9
re-cross-examined both Sergeant LaCroix and T.M.’s mother about T.M.’s mother’s retrieval of the

underwear, calling into question the propriety of their actions for the jury’s consideration.

               Considering the substantial evidence of appellant’s guilt—including the presence of

appellant’s DNA in a semen stain containing sperm on T.M.’s mattress and the testimony of T.M.

and three other victims regarding sexual assaults committed against them by appellant when they

were minors—and considering both parties’ closing arguments, theories, and the record as a whole,

we conclude that the absence of an instruction that would have directed the jury not to consider any

evidence regarding the underwear if the jury believed the underwear were unlawfully obtained did

not deprive appellant of a fair and impartial trial. See Barrios, 283 S.W.3d at 350 (reversal required

only if harm so egregious that defendant did not have fair and impartial trial). Even if the jury had

received the instruction and disregarded the evidence regarding the underwear, the record provides

a vast amount of evidence to support a conviction. Accordingly, we overrule appellant’s first issue.


Definitions of “Knowingly” and “Intentionally”

               In his second complaint about the jury charge, appellant argues that the trial court did

not properly tailor the definitions of “knowingly” and “intentionally” with regard to the alleged

offense of aggravated sexual assault. Aggravated sexual assault is one of the acts of sexual abuse

that will support a conviction for continuous sexual abuse of a child if the act is proven to have been




                                                  10
committed with a certain frequency and over a certain time period.3 The definitions in the jury

charge were as follows:


                A person acts intentionally, or with the [sic] intent, with respect to the
                nature of his conduct when it is his conscious objective or desire to
                cause the result.

                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.


                Appellant asserts that the trial court incorrectly defined the culpable mental states for

the offense. This Court and at least one other intermediate appellate court has recognized that the

law is somewhat unsettled regarding the way in which culpable mental states should be defined in

a sexual-assault charge. See Reed v. State, 421 S.W.3d 24, 28 (Tex. App.—Waco 2013, pet. ref’d);

Belmares v. State, No. 03-11-00121-CR, 2011 WL 5865236, at *2 (Tex. App.—Austin

Nov. 23, 2011, pet. ref’d) (mem. op., not designated for publication).

                However, we need not decide whether error occurred because even assuming that the

trial court erred, appellant did not object to the definitions or request different definitions at trial and

is therefore not entitled to a reversal of his conviction unless he shows that he was egregiously


        3
          To establish continuous sexual abuse of a young child, the State must prove that, during
a period of thirty or more days in duration, the defendant committed two or more acts of sexual
abuse, and at the time of the commission of each of these acts of sexual abuse, the defendant was
seventeen years of age or older and the victim was younger than the age of fourteen. See Tex. Penal
Code § 21.02. An “act of sexual abuse” includes aggravated sexual assault of a child. See id. A
person commits aggravated sexual assault of a child if he knowingly or intentionally causes the
penetration of a child’s anus or sexual organ by any means or causes his sexual organ to contact the
sexual organ of a child younger than fourteen years of age. Id. § 22.021(a)(1)(B)(i), (iii), (a)(2)(B).


                                                    11
harmed. Ngo, 175 S.W.3d at 743-44; Kuhn, 393 S.W.3d at 524. In considering the entire jury

charge as part of our egregious-harm analysis, we note that the trial court correctly tracked the

applicable statute and properly used the terms “intentionally” and “knowingly” in the application

paragraphs. Specifically, the charge stated:


               [I]f you believe from the evidence beyond a reasonable doubt, that the
               defendant, . . . . during a period that was 30 days or more in duration,
               committed two or more acts of sexual abuse against [T.M.], said acts
               of sexual abuse having been violations of one or more of the
               following penal laws, namely:
                                                  ....

               aggravated sexual assault of a child by intentionally or knowingly
               causing the penetration of the sexual organ of [T.M.], a child who
               was younger than 14 years of age, by the defendant’s sexual organ;

               aggravated sexual assault of a child by intentionally or knowingly
               causing the penetration of the sexual organ of [T.M.], a child who
               was younger than 14 years of age, by the defendant’s finger;

               aggravated sexual assault of a child by intentionally or knowingly
               causing contact with the sexual organ of [T.M.], a child who was
               younger than 14 years of age, by the defendant’s sexual organ.


Thus, the jury was properly instructed that a conviction was warranted only if the jury found that

appellant had intentionally or knowingly caused the penetration of T.M.’s sexual organ or contact

between appellant’s sexual organ and T.M.’s sexual organ.4 The language is consistent with the

statutorily prohibited conduct. See Tex. Penal Code § 22.021; Belmares, 2011 WL 5865236, at *3.




       4
          There was some evidence at trial that appellant had touched and/or penetrated T.M.’s
sexual organ using his hand, hence the instruction regarding penetration with a finger, but the bulk
of the evidence at trial related to appellant penetrating T.M.’s sexual organ with his sexual organ.

                                                 12
Application paragraphs that correctly instruct the jury on the law applicable to the case mitigate

against a finding of egregious harm. See Patrick v. State, 906 S.W.2d 481, 493 (Tex. Crim. App.

1995); Belmares, 2011 WL 5865236 at *3.

               Further, intent was not a contested issue at trial in this case. In this case, appellant

denied that any sexual contact occurred, and his defensive theory was that T.M. fabricated her outcry.

Throughout trial and in closing arguments, the defense focused on the credibility of appellant and

T.M., as an excerpt from defense counsel’s closing arguments makes clear:


               I think you also had an opportunity to see in the course of this trial
               that oftentimes what you’re ultimately presented with doesn’t boil
               down to really just hard core evidence that you can see, that you
               can feel or that may have been able to have been even sent off to
               be analyzed.

               You deal with something far more difficult to weigh and to evaluate.
               And that’s credibility.

               And you recall how many people during the course of voir dire were
               asked about issues dealing with exactly that. He said, she said.
               Because frequently there is nothing more.

               And then is when you have to make that hard determination as to
               whether or not actual and sufficient relevant proof beyond a
               reasonable doubt has been provided.

               Credibility. Credibility, we submit to you is the most important
               aspect of your final determination when you go back in and deliberate
               on this case.


               When intent is not a contested issue at trial, the submission of erroneous definitions of

“intentionally” and “knowingly” is not egregiously harmful to the defendant.                 Belmares,

2011 WL 5865236, at *3; Saldivar v. State, 783 S.W.2d 265, 268 (Tex. App.—Corpus Christi 1989,

                                                  13
no pet.); see also Jones v. State, 229 S.W.3d 489, 494 (Tex. App.—Texarkana 2007, no pet.) (“[T]he

intent of Jones in touching B.S.S., while it was a part of the State’s required proof, was not a

contested issue and consequently Jones could not be egregiously harmed by the definition of the

intentional and knowing state of mind.”)

               Considering the entire record, including the extensive evidence of appellant’s guilt,

the application paragraphs in the jury charge, and the lack of a dispute about the issue of intent, we

conclude that appellant was not egregiously harmed by the trial court’s definitions of “intentionally”

and “knowingly” even if the definitions were in error. See Patrick, 906 S.W.2d at 493; Belmares,

2011 WL 5865236, at *3; Saldivar, 783 S.W.2d at 268; Jones, 229 S.W.3d at 494. We therefore

overrule appellant’s second issue.


Instruction Regarding the Term “Penetration”

               In his third issue, appellant contends that the trial court included an erroneous

instruction in the jury charge regarding the term “penetration.” The challenged instruction stated:

“You are instructed that, as to the offense of aggravated sexual assault, penetration is complete

regardless how slight.” Appellant argues that the instruction was an improper comment on the

evidence and should not have been included in the charge.

               Appellant concedes that Texas case law has approved of the use of the instruction for

more than seventy years but argues that the instruction has been called into question by the analysis

of the Texas Court of Criminal Appeals in Brown v. State, 122 S.W.3d 794 (Tex. Crim. App. 2003).

Brown was a murder case in which the defendant challenged an instruction stating that the jury could




                                                 14
infer intent or knowledge by acts done or words spoken. 122 S.W.3d at 796. The Court in Brown

held that the trial court’s instruction was an improper judicial comment. Id. at 802-03.

               We are not convinced that the holding in Brown has any bearing on the instruction

in this case when Brown addressed a different instruction and a different offense than the ones here.

Appellant does not cite to any case law in which an instruction like the one in this case was evaluated

in light of Brown and its progeny, and at least one case decided after Brown upheld an instruction

almost identical to the one here. Arriaga v. State, No. 05-09-00815-CR, 2010 WL 2404693, at *2-4

(Tex. App.—Dallas June 17, 2010, pet. ref’d) (not designated for publication). Further, the Brown

court held that the error in that case was harmless. 122 S.W.3d at 803-04.

               In this case, even assuming that the trial court erred in including the instruction,

appellant must show egregious harm in order to obtain a reversal, and like Brown, a review of the

entire record shows that any error in including the instruction was harmless. To begin with, as

appellant concedes, the issue of penetration was not contested at trial. Rather, as previously

addressed under appellant’s second issue above, appellant contended that he never had sexual contact

with T.M. and that T.M. was fabricating the allegations. The defense consequently focused

throughout trial on the credibility of T.M. and appellant. Further, all of the testimony about T.M.’s

account of the sexual abuse—including the testimony of T.M., her mother, the sexual-assault nurse

examiner, and the forensic interviewer—was consistent in terms of T.M.’s statements that appellant

penetrated her sexual organ with his sexual organ. Specifically, T.M. testified more than once that

appellant put his sexual organ “in [her] private part.” T.M.’s mother testified that T.M. told her

during her outcry that appellant put his “private part in [T.M.’s] private part” and that he would do



                                                  15
that until “white stuff came out.” The forensic nurse testified that T.M. told her during an

examination the day after T.M.’s outcry that appellant put his sexual organ “in her vagina” and that

“white stuff” came out of his sexual organ and went “in [her].” The forensic interviewer who

interviewed T.M. shortly after her outcry testified that T.M. said that appellant had sex with her and

that “white stuff” went into her sexual organ. In addition to testimony about T.M.’s account of the

abuse, the forensic nurse also testified that T.M. had damage on the inside of her sexual organ

that could be evidence of sexual intercourse or poor hygiene and that it was unlikely the result of

poor hygiene.

                 The record shows that the issue of penetration was not contested or even an issue at

trial because all of the evidence describing the alleged sexual abuse of T.M. led to the inevitable

conclusion that if sexual abuse occurred, then penetration occurred. Considering all of the evidence

of appellant’s guilt and the fact that penetration was a non-issue at trial, we conclude that any

error in including the instruction in the jury charge was harmless.           See Whitten v. State,

No. 07-12-00200-CR, 2013 WL 4711198, *8 (Tex. App.—Amarillo Aug. 27, 2013, pet. ref’d)

(mem. op., not designated for publication) (holding that instruction “that penetration is complete

however slight” was harmless where issue of whether penetration occurred was not contested

at trial).


                                          CONCLUSION

                 Having overruled all of appellant’s issues, we affirm the trial court’s judgment

of conviction.




                                                  16
                                                  _______________________________
                                                  Cindy Olson Bourland, Justice

Before Chief Justice Rose, Justices Pemberton and Bourland

Affirmed

Filed: November 17, 2015

Do Not Publish




                                             17
