                               IN THE
                       TENTH COURT OF APPEALS

                             No. 10-10-00188-CR

MATTHEW AARON BRAUDAWAY,
                                                       Appellant
v.

THE STATE OF TEXAS,
                                                       Appellee



                        From the 249th District Court
                           Johnson County, Texas
                           Trial Court No. F44325


                        MEMORANDUM OPINION


      The jury convicted Matthew Aaron Braudaway of aggravated sexual assault and

assessed his punishment at ten years confinement. TEX. PENAL CODE ANN. § 22.021

(Vernon Pamph. 2010). We affirm.

                                   Background Facts

      Matthew and Spring Braudaway are the parents of two children. The family

lived with Matthew’s father, Tom Braudaway.       Spring’s sister, Autumn, and her
husband, Bryan, have three children. One of the children, A.G., is the victim in this

case.

        On June 22, 2009, Autumn, Bryan, A.G., and A.G.’s sister were staying the night

with Matthew and Spring at Tom’s house. There are several different versions of the

events that occurred that night that resulted in Matthew’s conviction for the aggravated

sexual assault of A.G.

        Spring testified at trial that her two children and A.G. were sleeping in a back

playroom that had a “baby gate” in the doorway. Matthew, Spring, Autumn, and

Bryan were all sleeping in the living room, and Tom was in his bedroom. Around 2:00

a.m., Spring got up to use the bathroom. She went to the playroom where the children

were sleeping and turned on the light to check on the children. Spring testified that she

saw Matthew lying on top of A.G. with his shorts around his ankles. A.G.’s shorts and

panties were thrown off to the side. Spring testified that there was skin to skin contact

between Matthew’s genitals and A.G.’s genitals. Spring said that she shoved Matthew

off of A.G. and punched him a couple of times. She said that Matthew appeared to be

passed out.

        Spring further testified that Matthew was drinking that night, but that he was

not intoxicated or incoherent. Spring said that she, Autumn, and Bryan were not

drinking.

        Spring testified that A.G. told her Matthew held her down and hurt her arm and

that Matthew’s beard scratched her face. Spring woke up Autumn and told her what




Braudaway v. State                                                                 Page 2
happened. Spring, Autumn, Bryan, and all of the children then left the house. They

called the police and reported the offense.

       A.G. testified at trial that Matthew “stripped” her and got on top of her. She said

that Matthew took his shorts off and that she saw his “butt” and “weenie.” A.G. further

testified that Matthew hurt her arm and her “pee-pee tail.” A.G. said that Matthew put

his “weenie” in her “pee-pee tail.” A.G. stated that Matthew had put his “weenie” in

her “pee-pee tail” one other time.

       Tom testified at trial that he got up around 2:30 a.m., made coffee, and prepared

his lunch for work that day. At that time, Autumn was sleeping on the loveseat with

Bryan on the floor in front of her. Spring was on the couch and Matthew was asleep on

the floor. Tom said that he heard Spring get up and walk down the hallway. Tom

followed her to see what was wrong. Tom saw that the baby gate in the children’s

playroom was open. Tom saw Matthew in the children’s playroom fully clothed and all

of the children were fully clothed. Spring talked to Autumn and Bryan, and they got

the children and left. Tom testified that later the police came to the house and arrested

Matthew.

       Matthew testified that on the night of the offense he drank six beers and six

mixed drinks. He stated that Spring and Autumn were also drinking. The children

were all asleep in the back playroom.

       Matthew testified that he got up during the night to go to the bathroom. After

using the bathroom, Matthew did not pull his shorts up all the way. Matthew then

“stumped” his toe coming out of the bathroom. He lost his balance and fell over the

Braudaway v. State                                                                  Page 3
baby gate into the children’s playroom. Matthew said that his shorts were pulled down

because they got caught on a screw on the baby gate. Matthew further testified that

after falling over the baby gate, he landed next to A.G. Matthew was on his hands and

knees attempting to get up when Spring turned on the light. Spring kicked Matthew

knocking him backwards. Tom then came into the room. Matthew testified that Spring

took A.G. and ran down the hall. Spring, Autumn, Bryan, and all the children left.

       Matthew testified that there was no genital to genital contact with A.G. Matthew

was lying next to A.G., but was not on top of her. Matthew said that his shorts were

pulled down, but that he was also wearing boxer shorts that were not pulled down.

Matthew stated that A.G. was fully clothed.

                                Lesser-Included Offense

       In the first issue on appeal, Matthew argues that the trial court erred in denying

his request for a jury instruction on the lesser-included offense of indecency with a

child. In determining whether the appellant is entitled to a charge on a lesser-included

offense, we must consider all of the evidence introduced at trial, whether produced by

the State or the defendant. Young v. State, 283 S.W.3d 854, 875 (Tex. Crim. App. 2009),

cert. den’d 130 S.Ct. 1015 (2009). We use a two-pronged test in our review. Young v.

State, 283 S.W.3d at 875; Rousseau v. State, 855 S.W.2d 666, 672-75 (Tex.Crim.App.1993).

First, the lesser-included offense must be included within the proof necessary to

establish the offense charged; second, there must be some evidence in the record that if

the defendant is guilty, he is guilty only of the lesser-included offense. Young v. State,

283 S.W.3d at 875; Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007). The

Braudaway v. State                                                                   Page 4
credibility of the evidence and whether it conflicts with other evidence or is

controverted may not be considered in determining whether an instruction on a lesser-

included offense should be given. Young v. State, 283 S.W.3d at 876.

       The State acknowledges in its brief that indecency with a child by sexual contact

is a lesser included offense of aggravated sexual assault of a child when both offenses

are predicated on the same act. See Evans v. State, 299 S.W.3d 138, 143 (Tex. Crim. App.

2009). Therefore, we must determine whether there is any evidence that if Matthew is

guilty, he is guilty only of indecency with a child by contact.

       The State presented evidence of aggravated sexual assault. Matthew testified

that he did not engage in any sexual contact with A.G. and that he accidently fell down

beside her. Tom testified that no offense occurred.

       A defendant's own testimony that he committed no offense, or testimony which

otherwise shows that no offense occurred at all, is not adequate to raise the issue of a

lesser-included offense. Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001). In

Bignall v. State, the court held that if a defendant either presents evidence that he

committed no offense or presents no evidence, and there is no evidence otherwise

showing that he is guilty only of a lesser-included offense, then a charge on a lesser-

included offense is not required. Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App.

1994). The evidence must establish that if a defendant is guilty, he is guilty only of the

lesser included offense. Lofton v. State, 45 S.W.3d at 652.




Braudaway v. State                                                                  Page 5
       The evidence does not establish that Matthew is only guilty of indecency with a

child by sexual contact. The trial court did not err in denying the requested instruction.

We overrule the first issue on appeal.

                                   Outcry Witnesses

       In his second issue on appeal, Matthew contends that the trial court erred in

allowing the State to offer the outcry testimony of both Spring and Autumn. The trial

court held a hearing to determine whether Spring and Autumn should both be

designated as outcry witnesses pursuant to TEX. CRIM. PRO. ANN. art. 38.072 (Vernon

2007). Spring testified at the hearing that she asked A.G. if Matthew hurt her. A.G.

replied that Matthew held her down and hurt her arm and that his beard scratched her

face. Autumn testified at the hearing that after they all left Tom’s house, A.G. said that

Matthew held her arms down, that he hurt her arms and her “pee-pee tail,” and that it

scared her.

       Article 38.072 provides an exception to the hearsay rule and is applicable to

statements describing the alleged offense that (1) were made by the child against whom

the offense was allegedly committed, and (2) were made to the first person, 18 years of

age or older, other than the defendant, to whom the child made a statement about the

offense. TEX. CRIM. PRO. ANN. art. 38.072 § 2 (Vernon 2007). The State is permitted to

call multiple outcry witnesses if they each testify about different events. Broderick v.

State, 35 S.W.3d 67, 73 (Tex. App.—Texarkana 2000, pet. ref'd). To constitute outcry

evidence, the child's statement must be more than a general allusion that sexual abuse is

going on; the statement must describe the offense in some discernible manner. Garcia v.

Braudaway v. State                                                                  Page 6
State, 792 S.W.2d 88, 92 (Tex. Cr. App. 1990); Smith v. State, 131 S.W.3d 928, 930-931 (Tex.

App.—Eastland 2004, pet. ref’d).

           A.G.’s statement to Spring does not describe the offense of aggravated sexual

assault in a discernable manner. Spring’s testimony is not outcry testimony, and its

admission for that purpose was error. However, any error in admitting the testimony

of Spring did not affect Matthew’s substantial rights. TEX. R. APP. P. 44.2 (b). A.G.

testified without objection that Matthew got on top of her and hurt her arm and her

“pee-pee tail.” Matthew has not shown that he was harmed by the admission of the

testimony. We overrule Matthew’s second issue on appeal.

                                                   Allen Charge

           In his third issue, Matthew complains that the trial court erred in giving an Allen

charge to the jury.1 After retiring to deliberate, the jury sent a series of notes. The first

two notes requested exhibits and also requested portions of testimony in dispute. The

jury continued deliberations after being provided the requested evidence. The jury later

sent a note that it appeared to be at “impasse” with the current vote being 11 guilty and

1 not guilty on Count 1. The trial court instructed the jury to continue deliberations.

           The jury later sent another note asking that the jury be recessed until the

morning. Matthew exercised his right under TEX. CRIM. PRO. ANN. art. 35.23 (Vernon -

2006) that the jury not be allowed to separate. The trial court informed the jury of the

law requiring jurors to be kept together during deliberations. The trial court explained

about the overnight accommodations that would be made. The jury responded with

1   See Allen v. United States, 164 U.S. 492 (1896).

Braudaway v. State                                                                      Page 7
another note that there were still 11 jurors deciding “one way” and 1 juror the “other

way.” The jury also expressed some concerns about staying overnight.

       The trial court suggested giving an Allen charge at that time, but instead only

instructed the jury to continue deliberations. The trial court later received a note from

the jury that the jury was “hopelessly deadlocked as to Count 1 of the indictment.” The

note indicated that there were 11 votes for guilty and 1 for not guilty.           Matthew

requested a mistrial.

       The trial court then gave an Allen charge to the jury stating:

       Ladies and gentlemen of the jury, if this jury finds itself unable to arrive at
       a unanimous verdict it will be necessary for the Court to declare a mistrial
       and discharge the jury. The indictment will still be pending and it is
       reasonable to assume that the case will be tried again before another jury
       at some future time. Any such future jury will be impaneled in the same
       way this jury has been impaneled and will likely hear the same evidence
       which has been presented to this jury. The questions to be determined by
       that jury will be the same questions confronting you, and there is no
       reason to hope the next jury will find these questions any easier to decide
       than you have found. With this additional instruction, you are requested
       to continue deliberations in an effort to arrive at a verdict that is
       acceptable to all members of the jury, if you can do so without doing
       violence to your conscience. Don’t do violence to your conscience but
       continue deliberating.

Some time later, the jury sent a note indicating they had reached a verdict.

       The primary inquiry to determine the propriety of an Allen or "dynamite" charge

is its coercive effect on juror deliberation. Howard v. State, 941 S.W.2d 102, 123 (Tex.

Crim. App. 1996). The trial court’s knowledge of the holdout juror’s identity is a factor

to consider in determining whether the charge was coercive. See Hollie v. State, 967

S.W.2d 516, 520 (Tex. App.—San Antonio 1998, pet. ref’d).


Braudaway v. State                                                                       Page 8
       In the present case, the trial court did not probe the jury or attempt to identify

the minority juror. Howard v. State, 941 S.W.2d at 124. The trial court's information as to

numeric division was an unsolicited reference in a note from the jury. Howard v. State,

941 S.W.2d at 124; Hollie v. State, 967 S.W.2d at 523. The trial court did not inform the

jury that Matthew requested sequestration. We find that the charge did not have a

coercive effect on juror deliberation. The trial court did not err in giving the Allen

charge. We overrule the third issue.

                                    Directed Verdict

       In his fourth issue, Matthew argues that the trial court erred in denying his

motion for directed verdict. The indictment charged Matthew with aggravated sexual

assault in two counts. Matthew moved for a directed verdict as to both counts, and the

trial court denied the motion. The jury convicted Matthew of aggravated sexual assault

as alleged in Count 1 of the indictment. The jury acquitted Matthew of aggravated

sexual assault as alleged in Count 2 of the indictment. Matthew specifically argues that

the trial court erred in denying his motion for directed verdict in Count 2.

       A motion for a directed verdict is a challenge to the legal sufficiency of the

evidence. Williams v. State, 937 S.W.2d 479 (Tex. Crim. App. 1996). Because Matthew

was acquitted of aggravated sexual assault in Count 2, we need not address the

sufficiency of the evidence to support his conviction. See Madden v. State, 799 S.W.2d

683, note 2 (Tex. Crim. App. 1990). We overrule the fourth issue.

                                       Conclusion

       We affirm the trial court’s judgment.

Braudaway v. State                                                                   Page 9
                                       AL SCOGGINS
                                       Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 16, 2011
Do not publish
[CR25]




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