                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-17-00017-CR

DONNA KAY STEGGALL,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2015-2398-C2


                           MEMORANDUM OPINION


       Donna Steggall appeals from convictions for two counts of aggravated sexual

assault of a child and one count of indecency with a child. TEX. PENAL CODE ANN. §§

22.021, 21.11 (West 2011). Steggall complains that the evidence was factually insufficient,

the jury charge's instructions on extraneous offenses were erroneous, the application

paragraph in the jury charge for injury to a child was erroneous because it included the

wrong culpable mental states, the trial court erred by assessing court costs against her
because she is indigent, and the statute authorizing court costs against indigent

defendants is unconstitutional as applied. Because we find no reversible error, we affirm

the judgments of the trial court.

FACTUAL SUFFICIENCY

        In her first issue, Steggall complains that this Court should reinstate factual

sufficiency review and find that the evidence was factually insufficient for her to have

committed the offenses for which she was convicted. The Texas Court of Criminal

Appeals, in Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010), abandoned the

factual-sufficiency standard in criminal cases. Brooks v. State, 323 S.W.3d 893, 912 (Tex.

Crim. App. 2010). This Court has previously considered and rejected the arguments

presented by Steggall. See Wilkins v. State, No. 10-16-00233-CR, 2018 Tex. App. LEXIS

1575 at *8 (Tex. App.—Waco Feb. 28, 2018, no pet.) (mem. op., not designated for

publication). We are not persuaded to consider this argument in this proceeding. We

overrule issue one.

JURY CHARGE LIMITING INSTRUCTIONS

        In her second issue, Steggall complains that the two limiting instructions in the

abstract portion of the jury charge were erroneous. Steggall complains that the limiting

instruction regarding extraneous conduct pursuant to Rule of Evidence 404(b) in the jury

charge was erroneous because it did not limit the purposes for which the extraneous

conduct evidence was admitted. Steggall also complains that an instruction regarding


Steggall v. State                                                                   Page 2
article 38.37 of the Code of Criminal Procedure was erroneous because it did not limit the

evidence of extraneous offenses to any extraneous acts committed between her and the

child victim but instead referred to "any" extraneous offenses without limitation.

RULE 404(B) INSTRUCTION

          The jury charge included an instruction pursuant to Rule of Evidence 404(b) that

stated:

          You are instructed that if there is any testimony before you in this case
          regarding the Defendant having committed any offenses, if any, other than
          the offenses alleged against her in the indictment in this case, you cannot
          consider said testimony for any purpose, unless you find and believe
          beyond a reasonable doubt that the Defendant committed such other
          offenses, if any were committed, and even then you may only consider the
          same in determining proof of motive, opportunity, intent, preparation, plan
          or knowledge, if any, in connection with the offenses, if any, alleged against
          her in the indictment in this case, and for no other purpose.

          Steggall complains that the instruction as provided was erroneous because it did

not limit the jury's consideration of extraneous acts relating to drug abuse, her lesbian

relationships and her sexual proclivities and/or fetishes to any specific purpose under

Rule 404(b) but included the entire laundry list of purposes for which such evidence

could be admissible pursuant to Rule 404(b).1




1The limiting instruction included in the jury charge was limited to "any offenses, if any" and included no
reference to a "wrong" or "other act" as described in Rule 404(b). Steggall concedes that the evidence
regarding her relationships and sexual activities were not unlawful acts. Therefore, those acts did not
constitute an "offense" which would be applicable to that evidence and the jury instruction did not apply
to that evidence.
Steggall v. State                                                                                   Page 3
        A trial judge must—without any request or objections from the parties—prepare

a charge that accurately sets out the law applicable to the charged offense. See Delgado v.

State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007); TEX. CODE CRIM. PROC. art. 36.14. The

trial court is not required to include a limiting instruction in the jury charge when no

instruction was requested at the time the evidence was admitted. Delgado, 235 S.W.3d at

254. Steggall did not request a limiting instruction pursuant to Rule 404(b) of the Rules

of Evidence at the time that evidence of possible extraneous offenses was admitted; thus,

this evidence was admissible for all purposes. See id. But Steggall has not cited, nor have

we found, any cases holding that a trial court is prohibited from including a limiting

instruction in such a situation.

        Instead, the Court of Criminal Appeals long ago considered and rejected an

argument that the trial court reversibly erred by including a limiting instruction

regarding extraneous offenses in the jury charge over the appellant's objection in Fair v.

State. See Fair v. State, 465 S.W.2d 753, 754 (Tex. Crim. App. 1971). In Fair, the Court

determined that the included instruction, although not required, "was not harmful but

beneficial to the appellant" and it was not reversible error to instruct the jury that it could

consider the extraneous offense for a limited purpose over the defendant's objection. Fair,

465 S.W.2d at 755.

        In short, the Court of Criminal Appeals has held that an extraneous-offense

limiting instruction is beneficial to a defendant, and a trial judge does not commit


Steggall v. State                                                                        Page 4
reversible error by including such instruction in the jury charge. As such, the inclusion

of this instruction was not reversible error. See Fair, 465 S.W.2d at 755.

ARTICLE 38.37 INSTRUCTION

        Steggall also complains that the trial court's instruction pursuant to Article 38.37

was erroneous because it did not limit the jury's consideration of "offenses" committed

by the Defendant to "offenses" committed between Steggall and the victim.                   The

instruction in the jury charge stated:

        You are instructed that if there is any testimony before you in this case
        regarding the Defendant having committed any offenses, if any, other than
        the offenses alleged against her in the indictment, you cannot consider said
        testimony for any purpose unless you find and believe beyond a reasonable
        doubt that the Defendant committed such other offenses, if any were
        committed, and even then you may only consider the same for its bearing
        on relevant matters, including the state of mind of the Defendant and the
        alleged victim, S.M., and the previous and subsequent relationship between
        the Defendant and the alleged victim, S.M. if any, in connection with the
        offenses, if any, alleged against her in the indictment in this case, and for no
        other purpose.

        This instruction appears to be an amalgamation of Article 38.37, Section 1(b) and

Section 2(b). The instruction as given was limited to other "offenses" allegedly committed

by Steggall; however, Steggall complains only of an extraneous act at a swimming pool

which she concedes likely does not constitute an "offense." We agree that the evidence in

question did not constitute an "offense." Thus, this act was not included in the trial court's

instruction. Because the evidence had been admitted without objection pursuant to

Article 38.37 both during the evidentiary phase of the trial and in the jury charge, the


Steggall v. State                                                                          Page 5
surplus instruction did not include the action of which Steggall complains and was

therefore not erroneously included on this basis.

        Because we find that the charge was not erroneous pursuant to Steggall's

complaints regarding the jury instructions regarding extraneous offenses, we do not need

to conduct a harm analysis. See, e.g., Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App.

2015). We overrule issue two.

CULPABLE MENTAL STATE

        In her third issue, Steggall complains that the trial court erred by failing to

properly instruct the jury regarding the applicable culpable mental state for indecency

with a child. The application paragraph of the jury charge stated that the jury had to find

beyond a reasonable doubt that Steggall "did then and there with the intent to arouse or

gratify the sexual desire of any person, intentionally or knowingly expose the Defendant's

genitals, knowing that S.M., a child younger than seventeen (17) years of age was

present…"           Steggall contends that the terms "intentionally or knowingly" were

erroneously included because the requisite intent does not include "knowingly." The

abstract portion of the jury charge defined indecency with a child properly and did not

include the phrase "intentionally or knowingly."

        It is undisputed that Steggall did not object to the charge on this basis. Because

there was no objection made to the charge by Steggall, we must first determine whether

the charge as submitted to the jury was erroneous and if so, we must then analyze this


Steggall v. State                                                                     Page 6
complaint utilizing the standard of Almanza v. State. Almanza v. State, 686 S.W.2d 157

(Tex. Crim. App. 1985). Under Almanza, unobjected-to jury charge error will not result in

reversal of a conviction in the absence of "egregious harm." Almanza, 686 S.W.2d at 171.

        In examining the record for egregious harm, we consider the entire jury charge,

the state of the evidence, the final arguments of the parties, and any other relevant

information revealed by the record of the trial as a whole. Olivas v. State, 202 S.W.3d 137,

144 (Tex. Crim. App. 2006). Jury charge error is egregiously harmful if it affects the very

basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive

theory. Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007).

        The State concedes that the jury charge was erroneous on this basis. See Bazanes v.

State, 310 S.W.3d 32, 37 (Tex. App.—Fort Worth 2010, pet. ref'd). We agree that the jury

charge was erroneous. Therefore, we will review the record to determine whether this

error could have caused egregious harm to Steggall, considering the entire jury charge,

the state of the evidence, the argument of counsel, and any other relevant information

revealed by the record of the trial as a whole. See Olivas, 202 S.W.3d at 144; Almanza, 686

S.W.2d at 171.

THE ENTIRE JURY CHARGE

        The jury charge was otherwise unexceptional. The abstract portion accurately

stated the substantive law on the offense of indecency with a child—including the specific

intent to arouse or gratify—thus informing the jury of what the State had and did not


Steggall v. State                                                                      Page 7
have to prove. The terms were defined in the abstract portion of the charge which was

necessary for the two counts of aggravated sexual assault of a child, which was also

properly defined. Moreover, the charge included the required specific intent to arouse

or gratify in the application portion, along with the erroneous "intentionally and

knowingly" language. The charge also correctly addressed the indictment, statements of

the court and of counsel, the presumption of innocence, the credibility of witnesses and

weight to be given their testimony, and the burden of proof, and we have previously

determined that the instructions regarding extraneous offenses were not improperly

given.     Consequently, within the context of the entire jury charge, the erroneous

application paragraph appears less harmful. The jury charge as a whole slightly lessens

any potential harm suffered by Steggall.

THE STATE OF THE EVIDENCE

         Regarding the state of the evidence, the primary contested issue at trial was

whether Steggall committed the conduct at all. Whether or not Steggall committed the

offense "with the intent to arouse or gratify" was not an issue. We find that the state of

the evidence weighs against a finding of egregious harm to Steggall.

ARGUMENTS OF COUNSEL

         The closing arguments by the State and Steggall were focused on whether or not

the offenses were committed at all, not on the intent with which the indecency charge

was committed. We find nothing in the closing arguments by either the State or Steggall


Steggall v. State                                                                   Page 8
that indicates that she was egregiously harmed by the error, and in her brief, she

acknowledges that this factor weighs against a finding of egregious harm.

OTHER INFORMATION IN THE TRIAL AS A WHOLE

        After a review of the record, we note that each count in the indictment tracks the

same objectionable language as the charge; however, Steggall did not challenge the

indictment. Any potential error in the indictment was therefore, waived. See TEX. CODE

CRIM. PROC. ANN. art. 1.14(b) (West 2005). Steggall concedes that there is nothing in the

record that suggests that she suffered egregious harm from the erroneous charge.

NO EGREGIOUS HARM

        Under the stringent standards necessary to show egregious harm, we conclude

that this error did not affect the very basis of Steggall's conviction for indecency with a

child; thus, egregious harm has not been shown. Steggall's third issue is overruled.

COURT COSTS

        In her fourth and fifth issues, Steggall asserts that the trial court erred in assessing

court costs against her. In her fourth issue, Steggall argues that she should not have to

pay court costs at all because she is indigent. In her fifth issue, Steggall argues that the

statutes authorizing the assessment of court costs against indigent criminal defendants

are unconstitutional as applied to her and violate her right to equal protection because

court costs are not assessed against indigent civil parties.




Steggall v. State                                                                         Page 9
        This Court has overruled substantially-similar arguments pertaining to the

imposition of court costs for indigent criminal defendants. See, e.g., Martinez v. State, 507

S.W.3d. 914, 916-18 (Tex. App.—Waco 2016, no pet.). In light of our decision in Martinez,

we are not persuaded by Steggall's arguments regarding court costs. See id. Accordingly,

we overrule Steggall's fourth and fifth issues.

CONCLUSION

        Having found no reversible error, we affirm the judgments of the trial court.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 8, 2018
Do not publish
[CRPM]




Steggall v. State                                                                     Page 10
