                                      IN THE
                              TENTH COURT OF APPEALS

                                       No. 10-19-00076-CR

PAUL DARVIN MCDANIEL,
                                                                       Appellant
v.

THE STATE OF TEXAS,
                                                                       Appellee



                                From the 66th District Court
                                    Hill County, Texas
                                  Trial Court No. F072-18


                               MEMORANDUM OPINION


        In two issues, appellant, Paul Darvin McDaniel, challenges his conviction for

continuous sexual abuse of a young child. See TEX. PENAL CODE ANN. § 21.02 (West 2019).

We affirm.1




        1 As 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.
                       I.      FACTUAL SUFFICIENCY OF THE EVIDENCE

       In his first issue, McDaniel asserts that the evidence is factually insufficient to

prove that the last incident of sexual abuse transpired the way that the child victim, L.J.,

described.     McDaniel contends that this rendered the entirety of L.J.’s testimony

unreliable and weak as to undermine confidence in the jury’s verdict.

       The Court of Criminal Appeals has determined that factual sufficiency no longer

applies in criminal cases. See Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App.

2010) (concluding that there is “no meaningful distinction between the Jackson v. Virginia

legal sufficiency standard and the . . . factual-sufficiency standard, and these two

standards have become indistinguishable” and holding the following: “As the Court

with final appellate jurisdiction in this State, we decide that the Jackson v. Virginia

standard is the only standard that a reviewing court should apply in determining

whether the evidence is sufficient to support each element of a criminal offense that the

State is required to prove beyond a reasonable doubt. All other cases to the contrary,

including Clewis, are overruled.”); Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App.

2010) (adopting the Brooks plurality as a unanimous majority view); see also Garcia v. State,

No. 10-16-00045-CR, 2017 Tex. App. LEXIS 195, at **5-6 (Tex. App.—Waco Jan. 11, 2017,

pet. ref’d) (mem. op., not designated for publication). As an intermediate appellate court,

we are required to follow binding precedent in cases decided by the Court of Criminal

Appeals. See State v. DeLay, 208 S.W.3d 603, 607 (Tex. App.—Austin 2006) (“As an


McDaniel v. State                                                                      Page 2
intermediate appellate court, we lack the authority to overrule an opinion of the court of

criminal appeals”), aff’d sub nom., State v. Colyandro, 233 S.W.3d 870 (Tex. Crim. App.

2007).

         McDaniel does not argue that the evidence regarding the last incident of sexual

abuse was legally insufficient, thus conceding that the evidence is sufficient under the

Jackson v. Virginia standard of review. See Garcia, 2017 Tex. App. LEXIS 195, at *6 (citing

Sanders v. State, No. 10-14-00211-CR, 2015 Tex. App. LEXIS 4704, at *2 (Tex. App.—Waco

May 7, 2015, pet. ref’d) (“By asking this Court to only review the factual sufficiency of the

evidence, Sanders concedes the evidence is sufficient under the Jackson standard of

review.”)). Accordingly, we overrule McDaniel’s first issue.

                                     II.    THE JURY CHARGE

         In his second issue, McDaniel argues that the trial court failed to limit or tailor the

definitions of the culpable mental states to the applicable elements of the offense of

continuous sexual abuse of a child. As a result of these errors, McDaniel contends that

he suffered egregious harm.

A.       Standard of Review

         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 that error for harm.

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


McDaniel v. State                                                                         Page 3
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 not preserved

at trial by a proper objection, a reversal will be granted only if the error presents egregious

harm, meaning McDaniel did not receive a fair and impartial trial. Id. To obtain a reversal

for jury-charge error, McDaniel 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).

       McDaniel admits that he did not object to the jury charge; thus, he must show

egregious harm. See Almanza, 686 S.W.2d at 171. In examining the record for egregious

harm, we consider the 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); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006).

B.     Discussion

       The culpable mental states in the penal code encompass three possible conduct

elements that may be involved in an offense: (1) nature of the conduct; (2) result of the

conduct; and (3) circumstances surrounding the conduct. TEX. PENAL CODE ANN. § 6.03

(West 2011); see McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). When an


McDaniel v. State                                                                        Page 4
offense is specifically delineated as to the type of conduct, the trial court should limit the

statutory definitions in the jury charge to the culpable mental state required. See Price v.

State, 457 S.W.3d 437, 441 (Tex. Crim. App. 2015); Cook v. State, 884 S.W.2d 485, 491 (Tex.

Crim. App. 1994).

       In the instant case, McDaniel was charged by indictment with continuous sexual

abuse of a child. See TEX. PENAL CODE ANN. § 21.02. As alleged in the indictment, the

underlying offenses for continuous sexual abuse of a young child were aggravated sexual

assault of a child and indecency with a child by contact. See id. §§ 21.11(a)(1), 22.021 (West

2019). McDaniel argues that the culpable mental states for both of the underlying offenses

apply to the nature of the actor’s conduct, yet the charge improperly “defined intent and

knowledge with respect to the result of conduct and circumstances surrounding conduct

in addition to nature of conduct.”

       Both of the underlying offenses are nature-of-the-conduct offenses. See Reed v.

State, 421 S.W.3d 24, 28-29 (Tex. App.—Waco 2013, pet. ref’d) (noting that “aggravated

sexual assault is a conduct-oriented offense in which the focus of the offense is on whether

the defendant acted intentionally or knowingly with respect to the nature of his conduct

rather than the result of his conduct” (citing Gonzales v. State, 304 S.W.3d 838, 848 (Tex.

Crim. App. 2010); Vick v. State, 991 S.W.2d 830, 832 (Tex. Crim. App. 1999); Garcia v. State,

No. 10-09-00162-CR, 2010 Tex. App. LEXIS 2429, at **5-6 (Tex. App.—Waco Mar. 31, 2010,

no pet.) (mem. op., not designated for publication))); see also Pizzo v. State, 235 S.W.3d 711,


McDaniel v. State                                                                        Page 5
717 (Tex. Crim. App. 2007); Underwood v. State, 176 S.W.3d 635, 642 (Tex. App.—El Paso

2005, pet. ref’d) (“However, this Court has determined that indecency with a child is a

‘nature of the conduct’ offense.” (citing Washington v. State, 930 S.W.2d 695, 699 (Tex.

App.—El Paso 1996, no pet.); Caballero v. State, 927 S.W.2d 128, 131 (Tex. App.—El Paso

1996, pet. ref’d))).

       With respect to the culpable mental states, the abstract portion of the charge

provided the following, in pertinent part:

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

       A person acts knowingly, or with knowledge, with respect to the nature of
       his conduct or to circumstances surrounding his conduct when he is aware
       of the nature of his conduct or that the circumstances exist.

The abstract definition for “intentionally” tracks the entirety of the language in section

6.03(a) of the Texas Penal Code, whereas the definition for “knowingly” is limited to

nature-of-conduct and circumstances-surrounding-the-conduct elements. See TEX. PENAL

CODE ANN. § 6.03(a)-(b).

       Nevertheless, the application portion of the jury charge stated:

       Now if you find from the evidence beyond a reasonable doubt that on or
       about May 27, 2017, through August 19, 2017, when the defendant was 17
       years of age or older, commit two or more acts of sexual abuse against a
       child younger than 14 years of age, namely, [L.J.], did then and there by
       intentionally or knowingly causing the sexual organ of [L.J.], a child who
       was then and there younger than 14 years of age, to contact the sexual organ
       of the defendant, and/or by causing the anus of [L.J.] a child who was then
       and there younger than 14 years of age, to contact the sexual organ of the
McDaniel v. State                                                                       Page 6
       defendant, and/or by causing the penetration of the sexual organ of [L.J.], a
       child who was then and there younger than 14 years of age, by a finger of
       the defendant, and/or did then and there with the intent to arouse or gratify
       the sexual desire of said defendant by touching the genitals of [L.J.], a child
       who was then and there younger than 14 years of age, and/or did then and
       there with intent to arouse or gratify the sexual desire of said defendant by
       causing [L.J.] to touch the genitals of the defendant, then you will find the
       defendant “Guilty” of continuous sexual abuse of a young child as charged
       in the indictment.

As shown above, “intentionally or knowingly” in the application portion of the jury

charge was properly tailored to the nature of McDaniel’s conduct. Furthermore, the

language tracked the allegations made in the indictment.

       The Court of Criminal Appeals has held that “[w]here the application paragraph

correctly instructs the jury, an error in the abstract instruction is not egregious.” Medina

v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); see Plata v. State, 926 S.W.2d 300, 302-03

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

Crim. App. 1997) (holding that the inclusion of a 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). Abstract statements of law that go beyond the allegations in the indictment

will not present reversible error when the trial court’s application of the law to the facts

effectively restricts the jury’s deliberation to the allegations in the indictment. Grady v.

State, 614 S.W.2d 830, 831 (Tex. Crim. App. 1981).




McDaniel v. State                                                                        Page 7
       Therefore, assuming that the abstract portion of the charge contained error, we

cannot conclude that the purported error was egregious because the application

paragraph correctly limited the culpable mental states as charged in the indictment. See

Medina, 7 S.W.3d at 640; Plata, 926 S.W.2d at 302-03; Grady, 614 S.W.2d at 831; see also Pizzo,

235 S.W.3d at 717; Reed, 421 S.W.3d at 28-29; Underwood, 176 S.W.3d at 642. As such, any

error in the abstract portion of the charge was not calculated to injure McDaniel’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. We overrule McDaniel’s second issue.

                                      III.   CONCLUSION

       Having overruled both of McDaniel’s issues on appeal, we affirm the judgment of

the trial court.




                                                   JOHN E. NEILL
                                                   Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed November 13, 2019
Do not publish
[CR25]




McDaniel v. State                                                                        Page 8
