                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-14-00028-CR

JOSE CARMEN GARCIA, JR.,
                                                        Appellant
v.

THE STATE OF TEXAS,
                                                        Appellee



                           From the 19th District Court
                            McLennan County, Texas
                           Trial Court No. 2012-2360-C1


                          MEMORANDUM OPINION


      In one issue, appellant, Jose Carmen Garcia Jr., appeals his conviction for

indecency with a child by contact, a first-degree felony. See TEX. PENAL CODE ANN. §

21.11(a)(1) (West 2011). Because we cannot say that appellant was egregiously harmed

by the charge submitted to the jury, we affirm.
                                         I.      BACKGROUND1

         In the instant case, the indictment provides the following, in relevant part:

         [O]n or about the 20th day of November, A.D. 2010 in McLennan County,
         Texas, did then and there, with the intent to arouse or gratify the sexual
         desire of any person, engage in sexual contact with [J.O.] by touching the
         genitals of [J.O.], a child who was at the time younger than seventeen (17)
         years of age and not the spouse of Defendant, by means of Defendant’s
         hand . . . .

Appellant did not object to the language in the indictment, and this case proceeded to

trial.

         At the conclusion of the evidence, the jury was instructed regarding the law

governing the case.       Among the many items included in the jury charge was the

following definition of the term “child”:           “‘Child,’ means a person younger than

seventeen (17) years of age who is not the spouse of the actor.” However, in the

application portion, the charge stated the following elements of the charged offense:

                                       ELEMENTS

         1. On or about the 20th day of November, 2010;

         2. in McLennan County, Texas;

         3. the defendant, JOSE CARMEN GARCIA, JR.;

         4. did then and there, with the intent to arouse or gratify the sexual
            desire of any person;

         5. engage in sexual contact with [J.O.] by touching the genitals of [J.O.], a
            child who was then and there younger than seventeen (17) years of
            age;



         1As this is a memorandum opinion and the parties are familiar with the facts, we only recite
those facts necessary to the disposition of the case. See TEX. R. APP. P. 47.1, 47.4.

Garcia v. State                                                                               Page 2
        6. by means of the Defendant’s hand.

        Appellant did not object to the charge, and the jury subsequently found

appellant guilty of the charged offense.                 After appellant pleaded guilty to an

enhancement paragraph contained in the indictment, the trial court assessed

punishment at life imprisonment in the Institutional Division of the Texas Department

of Criminal Justice.2 Appellant filed a motion for new trial, which was later denied by

the trial court. This appeal followed.

                                             II.     THE CHARGE

        In his sole issue on appeal, appellant complains that the trial court’s charge

erroneously defined the term “child.”              More specifically, appellant argues that the

charge’s definition of “child” was confusing because it required the State to prove an

element that is no longer required for indecency with a child by contact—that the child

victim is not appellant’s spouse.

A.      Applicable Law

        In reviewing a jury-charge issue, an appellate court’s first duty is to determine

whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.

App. 1996). If error is found, the appellate court must analyze the error for harm.

Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was

properly preserved by objection, reversal will be necessary if the error is not harmless.

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was



        2 In the indictment, the State used appellant’s prior felony convictions for indecency with a child
and failure to comply with sex offender registration for enhancement purposes.

Garcia v. State                                                                                     Page 3
not preserved at trial by a proper objection, a reversal will be granted only if the error

presents egregious harm, meaning appellant did not receive a fair and impartial trial.

Id. To obtain a reversal for jury-charge error, appellant must have suffered actual harm

and not just merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim.

App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).

        Under Texas law, the trial court must provide the jury with “a written charge

setting forth the law applicable to the case; not expressing any opinion as to the weight

of the evidence, not summing up the testimony, discussing the facts or using any

argument in [its] charge calculated to arouse the sympathy or excite the passions of the

jury.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007); see Walters v. State, 247 S.W.3d

204, 208 (Tex. Crim. App. 2008). “This law requires the trial judge to instruct the jury on

statutory defenses, affirmative defenses, and justification whenever they are raised by

the evidence.” Walters, 247 S.W.3d at 208-09 (citing TEX. PENAL CODE ANN. §§ 2.03-.04

(West 2011); Arnold v. State, 742 S.W.2d 10, 13 (Tex. Crim. App. 1987)).            “Some

information, such as the elements of the charged offense, must appear in the jury charge

and is without question the law applicable to the case.” Sakil v. State, 287 S.W.3d 23, 26

(Tex. Crim. App. 2009) (internal citations & quotations omitted).

B.      Discussion

        It is undisputed that appellant did not object to the jury charge; accordingly, on

appeal, appellant must establish that he was egregiously harmed. See Sanchez, 376

S.W.3d at 775; Almanza, 686 S.W.2d at 171; Arline, 721 S.W.2d at 352. In examining the

record for egregious harm, we consider the entire jury charge, the state of the evidence,

Garcia v. State                                                                      Page 4
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); Sanchez v. State, 209 S.W.3d 117, 121 (Tex.

Crim. App. 2006).

        In the abstract portion, the charge defines a “child” as “a person younger than

seventeen (17) years of age who is not the spouse of the actor.” However, a review of

the operative criminal statute—section 21.11 of the Penal Code—shows that, in trying

appellant for indecency with a child by contact, the State was not required to prove

whether J.O. is appellant’s spouse. See TEX. PENAL CODE ANN. § 21.11(a). Instead,

section 21.11(b-1) provides that it “is an affirmative defense to prosecution under this

section that the actor was the spouse of the child at the time of the offense.” Id. §

21.11(b-1). Therefore, it appears that the definitional section of the charge contained

surplusage.3 In any event, the application paragraph in the charge did not reference the

spousal affirmative defense and, instead, substantially tracked the language of section

21.11(a). See id. § 21.11(a); see also Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App.

1999) (“Where the application paragraph correctly instructs the jury, an error in the

abstract instruction is not egregious.”); Plata v. State, 926 S.W.2d 300, 302-03 (Tex. Crim.



        3 Interestingly, had the charge’s definition of “child” been used in the application section, the
State’s burden in this case would have been heightened. See TEX. PENAL CODE ANN. § 21.11(a) (West
2011).


Garcia v. State                                                                                   Page 5
App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App.

1997) (holding that the inclusion of merely superfluous abstraction never produces

reversible error in the court’s charge because it has no effect on the jury’s ability to

implement fairly and accurately the commands of the application paragraph or

paragraphs).

         Furthermore, appellant admits that the State presented evidence to support a

finding on each element of its case and that the parties did not argue J.O.’s marital

status during closing argument.4 As appellant acknowledges, “the argument of the

parties focused on whether the allegation occurred at all.”

         Therefore, based on the foregoing, we conclude any error in the abstract portion

of the charge was not calculated to injure appellant’s rights or deprive him of a fair and

impartial trial. See Almanza, 686 S.W.2d at 171; see also Stuhler, 218 S.W.3d at 719;

Sanchez, 209 S.W.3d at 121. Accordingly, we cannot say that appellant was egregiously

harmed by the purported error in the charge. See Almanza, 686 S.W.2d at 171; see also

Stuhler, 218 S.W.3d at 719; Sanchez, 209 S.W.3d at 121. We overrule appellant’s sole

issue.




         4 In fact, the record includes the testimony of the child victim who recounted the alleged instance
of indecency with a child by contact. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2014)
(stating that a child victim’s testimony alone is sufficient to support a conviction for indecency with a
child); see also Cantu v. State, 366 S.W.3d 771, 775 (Tex. App.—Amarillo 2012, no pet.); Abbott v. State, 196
S.W.3d 334, 341 (Tex. App.—Waco 2006, pet. ref’d). And though not relevant to the State’s case-in-chief,
the record contains uncontroverted testimony that J.O. is not appellant’s spouse.

Garcia v. State                                                                                       Page 6
                                      III.   CONCLUSION

        Having overruled appellant’s sole issue on appeal, we affirm the judgment of the

trial court.



                                                AL SCOGGINS
                                                Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 5, 2015
Do not publish
[CRPM]




Garcia v. State                                                                   Page 7
