Opinion issued July 16, 2013




                                     In The

                               Court of Appeals
                                    For The

                        First District of Texas
                         ————————————
                               NO. 01-11-00867-CR
                               NO. 01-11-00868-CR
                         ———————————
                    RAMON P. ANGUIANO, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee



                 On Appeal from the 262nd District Court
                          Harris County, Texas
                 Trial Court Case Nos. 1290771 & 1290772



                       MEMORANDUM OPINION

     A jury convicted appellant, Ramon P. Anguiano, of two counts of the first-

degree felony offense of aggravated sexual assault of a child and assessed
punishment at confinement for life in both cases. 1        In two issues, appellant

contends that (1) the trial court erroneously failed to instruct the jury at the

punishment phase that it could only consider evidence of extraneous offenses if it

found beyond a reasonable doubt that appellant had committed the offenses; and

(2) the trial court erroneously failed, in trial court cause number 1290772, to

instruct the jury that it could consider recommending community supervision.

      We affirm.

                                    Background

      On April 17, 2010, appellant, his wife, Elizabeth, their son, and their

thirteen-year-old daughter, the complainant, E.A., arrived at their house after

attending a party. Shortly after they returned home, appellant and E.A. had an

argument, and appellant took E.A.’s cellphone away from her. E.A. started crying.

She later found Elizabeth in her bathroom and told her that she needed to talk to

her. E.A. told Elizabeth that, starting when she was around six years old, appellant

would occasionally touch E.A. inappropriately while Elizabeth was at work. This

conduct included forcing E.A. to engage in vaginal intercourse. E.A. reported that

these incidents had occurred at their house, at the parking lot of a nearby store, and

under a bridge close to their house. Elizabeth believed E.A. was telling the truth,

1
      See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (iii) (Vernon Supp. 2012). Trial
      court cause number 1290771 resulted in appellate cause number 01-11-00867-CR.
      Trial court cause number 1290772 resulted in appellate cause number 01-11-
      00868-CR.
                                          2
and she went to confront appellant. Appellant denied the allegations, but E.A.

insisted that he had assaulted her. E.A., Elizabeth, and appellant were all crying,

and, at one point during the confrontation, appellant went to his bedroom and

returned with a pistol. Because Elizabeth was afraid that appellant would kill

either them or himself, she left the house with E.A. and her son, and they stayed

with her daughter from her previous marriage, S.G.

      E.A., who was born in April 1997, testified that appellant first touched her

inappropriately when she was around five or six years old. On this occasion, E.A.

was sitting with appellant in a truck parked in a parking lot, and he asked her if she

wanted to “drive” the truck. She said yes, and appellant told her to sit on his lap.

Appellant started rubbing her thighs, but he did not take off his clothing or her

clothing, and he did not touch anything other than E.A.’s thighs.

      E.A. testified that the next incident happened in 2006. Appellant walked

into E.A.’s bedroom, kneeled down beside her bed, and had a conversation with

her concerning the family’s new dog. During this conversation, appellant reached

under the covers and began touching E.A. on her inner thighs. He then reached

under her pajamas and digitally penetrated her. Appellant told her to keep this

incident a secret.

      The next incident occurred when E.A. and appellant were watching a movie

in appellant’s bedroom. Appellant asked E.A. to touch his sexual organ. She

                                          3
initially refused, and appellant grabbed her hand, put it down his pants, and moved

it up and down. E.A. eventually “yanked” her hand away. Appellant told her not

to tell Elizabeth because she “wouldn’t be happy” and their family “would be

destroyed.”

      The last incident that E.A. described occurred under a bridge near their

house. Appellant, E.A., and her brother walked over to the bridge, and appellant

told his son to ride his bike around because he was going to show E.A. the fish in

the creek. Appellant took E.A. down near the water, turned her around, and told

her to open her legs. Appellant pulled her pants and underwear down and engaged

in vaginal intercourse. E.A. could not provide a specific date or even a time of

year for this occurrence, but she estimated that she was “around ten,” and she

agreed that she turned ten years old in April 2007. E.A. stated that appellant

touched her inappropriately on other occasions as well, but those events were more

difficult to remember.

      The State charged appellant with two counts of aggravated sexual assault of

a child. The first count, trial court cause number 1290771, alleged that on or about

June 15, 2001, appellant caused the penetration of E.A.’s sexual organ by placing

his finger in her sexual organ.     The second count, trial court cause number

1290772, alleged that on or about July 20, 2009, appellant caused E.A.’s sexual




                                         4
organ to contact his sexual organ. The jury ultimately found appellant guilty of

both of these counts.

      The prosecutor began the punishment phase by telling the jury, “The most

important part of the trial is coming up, and I want to let you know that [E.A.] was

not this Defendant’s first victim.” The State called S.G., Elizabeth’s daughter from

her previous marriage, who was twenty-nine at the time of appellant’s trial. S.G.

testified that she met appellant when she was nine, when he started dating

Elizabeth. S.G. stated that, when she was nine or ten, after Elizabeth had gone to

work early in the morning, appellant woke her up and touched her vagina. S.G.

testified that she could remember “another few times” where appellant “did the

same thing.” On later occasions, appellant would come into S.G.’s room wearing

only a towel, carry her into his bedroom, and attempt vaginal intercourse.

      On cross-examination, S.G. acknowledged that she never liked appellant, at

first “because he wasn’t [her] dad.” When asked if she had told anyone about the

alleged abuse, S.G. responded that she did not tell anyone for a long time “because

[appellant] would tell [her], you know, not to say anything because then [she] and

[her] mom and [her] brother were going to be living under a bridge and, you know,

having nothing.” S.G. also stated that she did not tell anyone about appellant’s

conduct until after E.A. made her outcry because she was scared and afraid that no

one would believe her.

                                         5
      The State also called A.G., Elizabeth’s niece, who was thirty-one at the time

of appellant’s trial. A.G. testified that appellant behaved inappropriately with her

when she was between the ages of ten and thirteen. On one occasion, appellant

tried to force her to kiss him, but he did not attempt to do anything else at that

time. On another occasion, A.G. was visiting appellant and Elizabeth’s house and,

while she was lying on a bed and watching television, appellant attempted digital

penetration. On cross-examination, A.G. stated that, when she was twenty-one or

twenty-two, she told her mother about what had happened with appellant, but she

ultimately decided not to pursue any charges. She denied ever making false

accusations against appellant.

      Appellant testified on his own behalf and denied ever abusing E.A., S.G., or

A.G. He theorized that S.G. was accusing him “[b]ecause she’s always been very

angry” and she had never liked him. He opined that A.G. was angry at him

because she had once asked Elizabeth for a $2,500 loan and appellant had refused.

He also stated that E.A. lied during her testimony in the guilt-innocence phase

“[b]ecause she’s angry.” He stated that all three witnesses were lying and were “in

cahoots.”

      Appellant testified that he had never been previously convicted of a felony.

He requested that the jury recommend that he be placed on probation.            The

following exchange then occurred with his counsel:

                                         6
      [Defense counsel]:         Now, you know the jury can only give you
                                 probation on the one [count, presumably
                                 referring to cause number 1290771,] and not
                                 on the other one; you know that, don’t you?

      [Appellant]:               Yes.

      The punishment phase charge did not include an instruction informing the

jury that it could only consider the evidence of appellant’s extraneous offenses

against S.G. and A.G. if it found beyond a reasonable doubt that appellant had

committed those offenses. The charge for cause number 1290771 included an

instruction stating that the jury could recommend community supervision. The

charge for cause number 1290772 did not include this instruction. Defense counsel

stated that he had no objections to the charge.

      In closing argument, defense counsel focused on the fact that S.G. and A.G.

both kept quiet about appellant’s conduct until nearly twenty years after the

incidents allegedly occurred. He argued that it did not make sense for S.G., in

particular, to fail to report the alleged abuse, given her longstanding dislike for

appellant. Defense counsel also stated that in the “older case,” referring to cause

number 1290771, the jury could give appellant probation. He then stated that

cause number 1290772 “is a little different” because the law changed in 2007 “and

now he cannot get probation from anybody, really, the Judge or the jury.” Defense

counsel asked the jury to recommend community supervision for cause number



                                          7
1290771 and to assess the minimum punishment, five years’ confinement, for

cause number 1290772.

      The State reminded the jury of A.G.’s and S.G.’s testimony, arguing that the

jury heard A.G. “testify that years ago he did the same exact thing, very similar

thing that he intended to do to [S.G.] and that he eventually did to [E.A.]” The

State reiterated that E.A. is appellant’s biological daughter and that he forced her to

have intercourse. The State noted that, when he testified, appellant called E.A.,

A.G., and S.G. liars, and he did not accept any responsibility for his actions. The

State then rhetorically asked,

      And do you know what happens when you molest three children?
      You know what happens when you stick your fingers in the vagina of
      three children over a period of 20 years? Do you know what happens
      when you put your penis into the vagina of a small child? You know
      what that makes you? That makes you a serial child molester.

The State called appellant a “serial child molester” on several occasions and

argued that appellant posed a future danger to the children of Harris County. The

State asked for the maximum punishment of life imprisonment.

      The jury ultimately assessed punishment at confinement for life on both

counts, and the trial court ordered these sentences to run concurrently.

                                   Charge Error

      In his first issue, appellant contends that the trial court erroneously failed to

instruct the jury that it could consider evidence of extraneous offenses and bad acts

                                          8
when assessing punishment only if it found beyond a reasonable doubt that

appellant had committed those acts. In his second issue, appellant contends that

the trial court erroneously failed, in cause number 1290772, to instruct the jury that

it could consider recommending community supervision.

      A.     Standard of Review

      We use a two-step process in reviewing jury charge error. Ngo v. State, 175

S.W.3d 738, 743 (Tex. Crim. App. 2005). First, we determine whether error exists

in the charge. Id. If error does exist, we review the record to determine whether

the error caused sufficient harm to require reversal of the conviction. Id. When, as

here, the defendant fails to object or states that he has no objection to the charge,

we will not reverse for jury-charge error unless the record shows “egregious harm”

to the defendant. Id. at 743–44; Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1984). Under this standard, we examine the entire record to determine

whether the error was so egregious and created such harm that the defendant did

not receive a fair and impartial trial. Allen v. State, 47 S.W.3d 47, 50–51 (Tex.

App.—Fort Worth 2001, pet. ref’d) (citing Hutch v. State, 922 S.W.2d 166, 171

(Tex. Crim. App. 1996)); see also Martinez v. State, 313 S.W.3d 358, 365 (Tex.

App.—Houston [1st Dist.] 2009, pet. ref’d) (stating same).




                                          9
       B.    Extraneous Offense Instruction

       Code of Criminal Procedure article 37.07 section 3(a)(1) provides that, at the

punishment phase,

       evidence may be offered by the state and the defendant as to any
       matter the court deems relevant to sentencing, including but not
       limited to . . . evidence of an extraneous crime or bad act that is shown
       beyond a reasonable doubt by evidence to have been committed by
       the defendant or for which he could be held criminally responsible,
       regardless of whether he has previously been charged with or finally
       convicted of the crime or act.

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (Vernon Supp. 2012). The

Court of Criminal Appeals has held that the plain language of this provision

“requires that such evidence may not be considered in assessing punishment until

the fact-finder is satisfied beyond a reasonable doubt that [the extraneous bad acts

and offenses] are attributable to the defendant.” Huizar v. State, 12 S.W.3d 479,

481 (Tex. Crim. App. 2000) (quoting Fields v. State, 1 S.W.3d 687, 688 (Tex.

Crim. App. 1999)). Once this requirement is met, the fact finder may use the

extraneous offense evidence however it chooses in assessing punishment. Id. at

484.

       At the punishment phase of a trial, the reasonable-doubt standard is

applicable in deciding whether to consider certain evidence in assessing the

sentence. Id. at 482. Without a reasonable-doubt instruction, “the jury might

apply a standard of proof less than reasonable doubt in its determination of the

                                          10
defendant’s connection to such offenses and bad acts, contrary to section 3(a).” Id.

at 484. Thus, when the State introduces evidence of extraneous offenses and bad

acts during the punishment phase, the trial court has the duty to sua sponte instruct

the jury that it may only consider such evidence if it finds beyond a reasonable

doubt that the defendant committed the bad acts. See id.; Martinez, 313 S.W.3d at

365 (holding that trial court has this duty regardless of whether defendant requests

instruction). The trial court’s failure to give such an instruction is error. Tabor v.

State, 88 S.W.3d 783, 788 (Tex. App.—Tyler 2002, no pet.); Allen, 47 S.W.3d at

50. In this case, the State concedes that the trial court erred when it failed to

include a reasonable-doubt instruction concerning extraneous offenses in the

punishment-phase charge.

      The trial court’s failure to include this instruction in the punishment-phase

charge is non-constitutional error subject to the appropriate harm analysis under

Almanza.    See Huizar, 12 S.W.3d at 484–85.            In determining whether the

defendant has suffered actual egregious harm, we consider “the entire jury charge,

the state of the evidence, including contested issues and weight of probative

evidence, the argument of counsel and any other relevant information revealed by

the record of the trial as a whole.” Huizar v. State, 29 S.W.3d 249, 251 (Tex.

App.—San Antonio 2000, pet. ref’d) (quoting Almanza, 686 S.W.2d at 171). Jury

charge error is egregiously harmful if “it affects the very basis of the case, deprives

                                          11
the defendant of a valuable right, or vitally affects a defensive theory.” Martinez,

313 S.W.3d at 367 (quoting Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim.

App. 2007)). Harm to the defendant must be actual, not merely theoretical. See id.

      In Huizar, on remand from the Court of Criminal Appeals, the San Antonio

Court of Appeals held that it could not “conclude that Huizar was denied a fair and

impartial trial” as a result of the trial court’s failure to give a reasonable-doubt

instruction. 29 S.W.3d at 251. The court noted that the State “relied on substantial

evidence of extraneous conduct in seeking punishment” and that the prosecutor

stated during the punishment-phase closing argument that “the State had no burden

of proof during the punishment trial.” Id. at 250. The court further noted that

although Huizar’s ninety-nine year sentence “may seem to be egregious harm that

requires reversal,” that sentence was within the permissible statutory punishment

range for aggravated sexual assault of a child. Id. at 251; Tabor, 88 S.W.3d at 789

(noting that assessed punishment was “well within the punishment range for the

offense” and declining “to speculate that Appellant received a longer sentence than

he would have had the instruction been included”). The trial court’s failure,

therefore, did not cause egregious harm. Huizar, 29 S.W.3d at 251.

      Here, S.G. testified that, when she was nine or ten, appellant, her step-father,

came into her bedroom after Elizabeth had gone to work and touched her vagina.

Appellant “did the same thing” “another few times,” and he eventually attempted

                                         12
vaginal intercourse with S.G.     A.G. testified that, after an incident in which

appellant tried to kiss her, she was watching television at appellant’s house when

he attempted digital penetration.     E.A.’s testimony indicates that appellant’s

actions with her mirrored his prior actions with S.G. and A.G. She testified that

appellant, her father, began inappropriately touching her when she was around five

years old and that, over the years, his behavior progressed from inappropriate-but-

not-illegal touching—rubbing her thighs while they were sitting in their truck—to

digital penetration and forcing her to touch his sexual organ. Ultimately, appellant

forced her to have vaginal intercourse when she was “around ten” years old.

E.A.’s testimony was clear, direct, and unimpeached, and the testimony from

Elizabeth, the forensic interviewer, and the doctor who examined E.A. reflects that

her account of events remained consistent.

      On cross-examination of S.G. and A.G., defense counsel focused on possible

motives for fabricating their testimony—S.G.’s longstanding dislike of appellant

and appellant’s refusal to lend A.G. $2,500—and on their failure to disclose the

alleged sexual assaults until after E.A. made her outcry. Both S.G. and A.G.

reiterated that appellant had sexually assaulted them. Appellant testified on his

own behalf at the punishment phase and denied all of the accusations against him,

opining that E.A., S.G., and A.G. were all lying and were “in cahoots.”




                                        13
      Although the charge did not include the required beyond-a-reasonable doubt

instruction regarding the extraneous offenses, it did instruct the jury that “[t]he

burden of proof in all criminal cases rests upon the State throughout the trial and

never shifts to the defendant.”2 See Martinez, 313 S.W.3d at 367 (concluding,

when charge at issue contained similar instruction but no beyond reasonable doubt

instruction, that charge itself weighed neither for nor against egregious harm

finding). The charge also instructed the jury that it “may take into consideration all

the facts shown by the evidence admitted before you in the full trial of this case,”

and it reminded the jury that it was the exclusive judge of the facts, the credibility

of the witnesses, and the weight to give their testimony. As in Martinez, this

charge, therefore, neither weighs in favor nor against a finding of egregious harm.

See id.

      During his argument, defense counsel focused on the same facts that he had

focused on when cross examining S.G. and A.G.: their reasons to dislike appellant

and their failure to report his actions until after E.A.’s outcry. Defense counsel

asked the jury to recommend community supervision in trial court cause number

1290771 and to assess the minimum amount of confinement, five years, for trial

court cause number 1290772.          The record also reflects that defense counsel

2
      Unlike in Huizar, the State here did not say that it had no burden of proof at all at
      the punishment phase. See Huizar v. State, 29 S.W.3d 249, 250 (Tex. App.—San
      Antonio 2000, pet. ref’d) (noting that prosecutor made this statement during
      punishment phase argument, but still finding no egregious harm).
                                           14
vigorously defended appellant, cross-examining each of the State’s witnesses and

calling witnesses to testify on appellant’s behalf. See Allen, 47 S.W.3d at 51

(considering whether defense counsel “vigorously defended” defendant when

conducting egregious-harm analysis).

      In its argument, the State informed the jury that it should consider four

things when assessing punishment: (1) appellant’s prior bad acts; (2) the facts of

the charged case; (3) any mitigation evidence; and (4) future danger to society. See

Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011) (stating that proper

jury argument consists of (1) summation of evidence; (2) reasonable deductions

from evidence; (3) answers to arguments by opposing counsel; and (4) pleas for

law enforcement); see also TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1)

(stating admissible evidence during punishment phase includes “any matter the

court deems relevant to sentencing,” including circumstances of offense for which

defendant is being tried and extraneous crimes or bad acts). The State reminded

the jury of S.G. and A.G.’s testimony. The State referred to appellant as a “serial

child molester” four times during argument, and it argued that the fact that

appellant had sexually assaulted three children over a twenty-year period indicated

that he presented a future danger to the children of Harris County. See Freeman,

340 S.W.3d at 727 (stating that making reasonable deduction from evidence is

permissible jury argument).     The State also reminded the jury that E.A. is

                                        15
appellant’s biological daughter and that, in addition to digitally penetrating E.A.,

which he also did to S.G. and attempted to do to A.G., he actually forced E.A. to

have intercourse. See id. (stating that summation of evidence is permissible jury

argument). The State also called attention to appellant’s testimony that everyone

involved with the case was lying, and it argued that he “accepts no responsibility”

and that no mitigating factors were present in the case. The State argued that life

imprisonment was the appropriate punishment for this case. See Martinez, 313

S.W.3d at 369 (noting that, although State used extraneous offenses to “create a

pattern of appellant ‘getting progressively more and more violent’” and asked for

life sentence to “protect [the jury] and all of us from him,” State did not rely solely

on extraneous offense evidence in arguing for life sentence).

        The jury assessed punishment at confinement for life for both offenses,

which is the maximum allowable punishment. However, the imposition of the

maximum punishment does not require a finding that appellant suffered egregious

harm.    See Huizar, 29 S.W.3d at 251 (noting that although ninety-nine year

sentence in aggravated sexual assault of child case “may seem to be egregious

harm that requires reversal,” this sentence was within permissible statutory

punishment range); see also Martinez, 313 S.W.3d at 369 (holding that “maximum

punishment alone does not indicate egregious harm” and that “[t]here is no




                                          16
egregious harm if the jury would still have assessed a life sentence, even if

properly instructed . . . .”).

         Although the State emphasized the extraneous offenses when it argued that

life imprisonment was an appropriate punishment, we cannot say that the facts of

the charged case alone do not warrant the imposition of such a severe sentence.

Given E.A.’s age when the sexual abuse began, the relationship between appellant

and E.A., the continuing nature of the abuse, and the escalation of appellant’s

conduct, which ultimately culminated in appellant forcing E.A., his daughter, to

engage in vaginal intercourse when she was around ten years old, we cannot

conclude, based on these facts, that the trial court’s failure to include a beyond-a-

reasonable-doubt instruction concerning the extraneous offenses in the

punishment-phase charge caused appellant egregious harm. See Sansom v. State,

292 S.W.3d 112, 134 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d)

(considering severity of charged offense and age of complainants when finding

failure to give beyond reasonable doubt instruction did not constitute egregious

harm); see also Bargas v. State, 252 S.W.3d 876, 888 (Tex. App.—Houston [14th

Dist.] 2008, no pet.) (holding that testimony of victim of aggravated sexual assault

of child by itself is sufficient to support conviction).

         We conclude that appellant was not egregiously harmed by the trial court’s

error.

                                           17
        We overrule appellant’s first issue.

        C.    Community Supervision Instruction

        Code of Criminal Procedure article 42.12, section 4 provides:

        A jury that imposes confinement as punishment for an offense may
        recommend to the judge that the judge suspend the imposition of the
        sentence and place the defendant on community supervision. A judge
        shall suspend the imposition of the sentence and place the defendant
        on community supervision if the jury makes that recommendation in
        the verdict.

TEX. CODE CRIM. PROC. ANN. art. 42.12, § 4(a) (Vernon Supp. 2012). Prior to

September 1, 2007, article 42.12, section 4(d) provided four specific ways in which

a defendant could be ineligible for jury-recommended community supervision,

none of which are applicable here. Acts 1965, 59th Leg., ch. 722, amended by Act

of May 18, 2007, 80th Leg., R.S., ch. 593, §1.05, 2007 Tex. Gen. Laws 1120,

1123.

        In 2007, the Texas Legislature added the following restriction to a

defendant’s eligibility for jury-recommended community supervision:                  “A

defendant is not eligible for community supervision under this section if the

defendant . . . is convicted of an offense listed in Section 3g(a)(1)(C), (E), or (H), if

the victim of the offense was younger than 14 years of age at the time the offense

was committed.” Act of May 18, 2007, 80th Leg., R.S., ch. 593, § 1.05, 2007 Tex.

Gen. Laws 1120, 1123 (current version at TEX. CODE CRIM. PROC. ANN. art. 42.12,

§ 4(d)(5)). Code of Criminal Procedure article 42.12, section 3g(a)(1)(E) refers to
                                           18
aggravated sexual assault.     See TEX. CODE CRIM. PROC. ANN. art. 42.12,

§ 3g(a)(1)(E). The Legislature provided that this change in law “applies only to an

offense committed on or after September 1, 2007.” Act of May 18, 2007, 80th

Leg., R.S., ch. 593, § 4.01(a), 2007 Tex. Gen. Laws 1120, 1148.

      The State is not required to allege in the indictment a specific date for the

commission of the charged offense. See Sledge v. State, 953 S.W.2d 253, 255

(Tex. Crim. App. 1997). It is “well settled” that the “on or about” language used in

the indictment “allows the State to prove a date other than the one alleged in the

indictment as long as the date is anterior to the presentment of the indictment and

within the statutory limitation period.” Id. at 256; Grimes v. State, 135 S.W.3d

803, 811 n.5 (Tex. App.—Houston [1st Dist.] 2004, no pet.).            There is no

limitations period for aggravated sexual assault of a child. See TEX. CODE CRIM.

PROC. ANN. art. 12.01(1)(B) (Vernon Supp. 2012).

      The trial court must charge the jury fully and affirmatively on the law

applicable to every issue raised by the evidence. See Ponce v. State, 89 S.W.3d

110, 118 (Tex. App.—Corpus Christi 2002, no pet.). For the defendant to be

entitled to the submission of the community supervision issue to the jury, in

addition to the defendant’s filing of a written sworn motion pursuant to article

42.12, section 4(e), record evidence must support the defendant’s eligibility for

probation. See Beyince v. State, 954 S.W.2d 878, 880 (Tex. App.—Houston [14th

                                        19
Dist.] 1997, no pet.); Green v. State, 658 S.W.2d 303, 309 (Tex. App.—Houston

[1st Dist.] 1983, pet. ref’d) (“The jury need not be charged on the issue of

probation in the absence of evidence before the jury to support the motion for

probation.”).   In this case, to establish appellant’s eligibility for community

supervision, record evidence must support a conclusion that appellant committed

the charged offense before September 1, 2007.

      The indictment for trial court cause number 1290772 alleged that appellant

“on or about JULY 20, 2009, did then and there unlawfully, intentionally and

knowingly cause the sexual organ of [E.A.], a person younger than fourteen years

of age and not the spouse of the Defendant, to CONTACT the SEXUAL ORGAN

of THE DEFENDANT.” E.A. testified that appellant forced her to have vaginal

intercourse under a bridge located near their house. E.A. testified that she was

born in April 1997, and she agreed that she turned ten years old in April 2007. She

stated that she believed she was “[a]bout ten” when this incident under the bridge

occurred. She did not provide a specific date or the time of year that this incident

occurred.

      Based on this evidence presented, it is equally likely that this particular

incident occurred before September 1, 2007, as it is that it occurred after

September 1, 2007. We therefore conclude that the trial court erroneously failed to




                                        20
instruct the jury that community supervision was a punishment option in cause

number 1290772.

      We also conclude, however, that this error did not cause egregious harm to

appellant.   In cause number 1290771, which alleged that appellant sexually

assaulted E.A. by digital penetration, the trial court properly instructed the jury that

it could consider recommending community supervision. The jury rejected this

punishment option, and it instead assessed punishment for that offense at

confinement for life. There is no indication that, had the jury been informed that it

could consider recommending community supervision in cause number 1290772,

the jury would have assessed any punishment other than that it actually did assess:

confinement for life. Furthermore, because the trial court ordered that appellant’s

two sentences are to run concurrently, even if the jury had recommended

community supervision in cause number 1290772, appellant would still have to

serve a life sentence for cause number 1290771. Thus, the trial court’s failure

caused no actual harm to appellant. See Durden v. State, 290 S.W.3d 413, 420

(Tex. App.—Texarkana 2009, no pet.) (“The harm must be actual and not just

theoretical.”); see also Taylor v. State, 332 S.W.3d 483, 489–90 (Tex. Crim. App.

2011) (noting that, when conducting egregious-harm analysis, courts consider any

part of record “which may illuminate the actual, not just theoretical, harm to the

accused”) (quoting Almanza, 686 S.W.2d at 174).

                                          21
      We therefore hold that any error committed by the trial court when it failed

to instruct the jury that it could consider recommending community supervision in

trial court cause number 1290772 did not cause egregious harm to appellant.

      We overrule appellant’s second issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

Justice Sharp, concurring in the judgment only.

Do Not Publish. TEX. R. APP. P. 47.2(b).




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