                                                                           PD-0715-15
                                                         COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
                                                         Transmitted 7/13/2015 8:30:01 PM
                                                           Accepted 7/15/2015 4:13:01 PM
                                                                           ABEL ACOSTA
                      NO. PD-0715-15                                               CLERK

                     IN THE
           COURT OF CRIMINAL APPEALS
                   OF TERAS


                     LEPun EARBIN,
                     Appellantffetitioner
                             Vs.
                 THE STATE OF TEXAS,
                    AppelIeeAiespondent


            APPELLANT9S PETITION FOR
             DISCRETIONARY REVIEW


                 Cause No. 05-14-00508-CR
                Court ofAppeals, Fifth District
                       At Dallas, Texas


                 Cause No. 219-80478-2012
                  In the 219th District Cout
                    Collin County, Texas




                                   Piper McCraw
                                   SBN 24045261
                                   1504 First Avenue
                                   McKinney, TX 75069
                                   (972)767-6369 Phone
July 15, 2015                      (972)767-6368 Fax
                                   Emai1: piDer@,mCCraWgantt.com

                                   Attomey for Petitioner/Appellant
               IDENTITY OF JUDGE, PARTIES, Anus COtJNSEL

Appellant                          Lennie Earbin

Trial Judges                       The Honorable Keith DeanFirstAdministrativeDistrictTheHonorableRichardDavis5100EldoradoParkway,Suite 102 #725McKinney,TX75070




Appe11ant9s Trial Attomey          Deric King WalpoleNordhausWalpoleP.O.Box2680McKirmey,TX75070




State9s Trial Attomeys             SharmonMllerJustinJohnsonCollinCountyDistrict Attomey9s Office2100BloomdaleRoad,Suite200McKirmey,TX75071




Appe11ant9s Attomey on Appeal      PiperMcCraw1504FirstAvenueMcELey,TX75069



State9s Attomey on Appeal          Emily Johnson-LiuCollinCountyDistrict Attomey's Office2100BloomdaleRoad,Suite200McELey,TX75071




petition forDiscretionary Review   piperMcCraw
Attomey                             1504 First AvenueMcKirmey,TX75069
                                 TABLE OF CONTENTS

IdentityofJudge, Parties, andCounse1.....................................................i

IndexofAuthorities..........................................................................iv

StatementRegardingOralArgunent.......................................................iv

StatementoftheCase..........................................................................1

StatementofProceduralHistory.............................................................1

FirstGroundForReview......................................................;..............oI
       The Court of Appeals erred in affirming Appellant9s guilt
       when there is nothing to show upon which counts jurors'
       relied on for the conviction.
       Reasonsfior R!eview......................................................................3
       Arguments andAthrities...........................................................i

SecondGroundforReview...............................,....................,..............
       The Court ofAppeals erred when they failed to address the
       insufficiency of evidence issue regarding aggravated sexual
       assault of a child by contact of A'ppellant9s genitals to
       |complainant9s mouth-through-clothing.
       Reasonsf;orR;eview...................................................................6
       Argon,eats andAuthorities...........................................................6

ThirdGroundforReview....................................................................9
       The Court ofAppealserredwhen they failed to addressthe
       insufficiency ofevidence issue regarding the indecency with
       a child by contact charge involving contact between
       Appellant9s hand and complainant9s genitals.
       R!easonsfiorR!eviev......................................................`...........10
       ArgunentsandAathorities...........................................................9

FourthGroundforReview.................................................................ll
       The Court ofAppeals erred when they failed to address the
       insufflciency of evidence issue regarding aggravated sexual
       assault of a child by contact of Appellant9s male sexual
       organ to eomplainant's female sexual organ through
       clothing.

       Reasonsfior Revi,ew..................................................................12.
       Arguments andAuthorities...............................,..........................1L
                                                'li
Prayer..........................................................................................13


Certificate ofCompliance...................................................................14

CertiflCateOfService........................................................................14

Appendix...................................,..........................,.......................15

       Ecz7'bZ®7¬ V. S#czfe, No. 05-14-00508-CR (Tex. App. Dallas, delivered May 12,
2015)(not designatedforpublication)................................................16-29




                                                iii
                               INDEX OF AUTHORITIES

                                             Cases:
 4JJeJ£ V. S#cz¢e, 249 S.W.3d 680, 704 (Tex.App.~Austin 2008, 73OPef.). .... .. .... . .10
J4#f#s!givo#gv. Sfa¬e, 845 S.W.2d 909, 910 (Tex. Grim. App. 1993}. .. . .......6, 10, I2
BrowJe1,. Sfc,fe, 508 S.W.2d 91 (Tex. Crim. App.1974).................................5
Do7ZO7zo i,. Szcz,e, 643 S.W.2d 698, 700 (Tex.Crim.App.1982).........................8
F71CZJ7CZ-S 1,. £fCZfe, 36 S.W.3d 121 (Tex. Crim. App. 2000)................................3
Gwiav. State,72:3 SIN.2,a763,766 ¢cjHtirygReshickv. State, S74 S.IV.2,a558, 57O
{Tex+ Grim+ App+ 1978}+ Cf. A4z'Jes ng+ JS,czJe, 157 T.ex+ Grim+ 188¥ 247 S+Wi2d &9&
(1952).....................,......................................,..............................7
HoopeJ~V. S£cz£e, 214 S.W.3d 9,16-17 (Tex. Grin. App. 2007).......................10
J77eO V. Szczfe, 822 S.W.2d 635, 636 (Tex. Crin. App.1991),..................7,10,12
£z-gfefv. Sfcz#e,15 S.W.3d 104,105 (Tex. Crim. App. 2000)...................6,10,12
A4lcKoy v._ IVoz~£faT CaroZz:7ZCZ, 494 ULSl 433,108 L._ Ed._ 2d 369,110 S. Ct. 1227
(1990)............._.......,.........:........................................_....................5
fl4la£7£Z-Z V. SfC,fe, 852 S.W.2d 520, 521 (Tex. Crim. App.1993)................7,10,12
Pz-zzo i,. Sticzfe, 235 S.W.3d 711 (Tex. Grim. App. 2007).................................3
Sc72CZC7 i,. 4rz-zo7ZCZ, 501 U.S. 624,115 I. Ed. 2d 555,111 S. Ct. 2491 (1991). . . . . ....5
zJfeZ£ecZJSZcz,=es v. ffoJZeJ,, 942 F.2d 916 {5th Cir+ 1991}__+.+_++++++_+++_+++++++++++.++++++3
7rz'ckv. Sfzzfe, 991 S.W.2d 830, 832-833 (Tex. Grim. App.1999)......................3
Wecz£72er/Ord V. £fCZ¢e, 828 S.W.2d 12,13 (Ten. Crim. App.1992). . . .. .......6,10,12

                             Rules and StatutoryProvisions:
TEX.CoNST.arfe.V,§-1\3......................................................................5
TEX.PEN.CoDE§21.ll.......................................................4, 7,9,12,13
TEX.PEN.CoDE§ 22.021....,...........................................................4,13
Thx. CoDECRIM.PROC. ANN. art. 36.29(a) (West Supp. 2012).....u..-................5
Tex.R.App.Pro. 47.1................................................................6,10,12
TexR.App. Pro.66.3(b}............................................................6, _1_0,12
TexR.App.Pro. 66.3®.....,..................................................,...6,10,12


                STATERENTREGARDING ORALARGURENT

       Appal-last belie!ves that oral arglrment Would assist this- Court in expHcatien

and disposition of the issues presented in this petition.                Therefore, Appellant

respectfully                     requests                      oral                    argument.


                                                 lV
                            STATEMENT OF THE CASE

      On April 10, 2014, ajury convicted Appellant ofContinuous Se"al Abuse

ofa Child. The Trial Court sentenced hin to 25 years in prison. QR5: 45; RR6:

43; CR: 112-114).         Appellant was found not guilty on Count II. (CR: 115).

Appellant timely perfected his appeal. (CR: 156). On May 12, 2014, Appellant

flled Motion forNew Trial, whi_ch wasov`emlled by_a_peration oflaw_._(CR: 151).

                 STATEnflEI`IT OF PROCEDURAL HISTORY

After Appe11ant9s conviction was affirmed on original submission, Eczrdz'7Z V. SfCZfe,

No. 05-14-_0050&-CR {Tex. App. Dallas, defivered-May 12, 2015-Xnet designated

for publication), he filed a Petition for Discretionary Review. rio Motion for

Rehearing was filed. This petition was originally due on June ll, 2015, but on

Appe11ant's MStien, t-his Court -exteflded the time -to July 13, 2015, and lit iS

therefore timely filed.

                           FmST GROtITIun FORREVIEW

TEE COtJRT OF APPEALS ERRED IN AFFIRENG APPELLANT9-S GIJILT

lh7IREN TIRERE IS NOTIHNG TO SHOW UPON WIflCH COUNTS TIE

JURORS' RELIED ONFORTIRE CONVICTION.

                                    JREGUREP¢T

      The indictmentretumed against Appellant allegedthe offense ofContinuous

Abuse of a Child with a victim under the age of 14. The indictment alleged the


                                          1
Appellant committedtwo counts ofse"al abuse. In CountI, five differentmanner

and means were ultimately submitted to the jlny for deliberation.             The jury

returned a guifty verdicttothe offenseofCoutinuousAbuse ofa Child. There was-

no determination to which ofthe five different manner and means Appellant was

found guilty ofcommitting.

      In order to re-nder a -g-uifty verdict -on -the Centin-uous Abuse ®f a Child

charge, the jury must fmd beyond a reasonable doubt that two or more of the

alleged manner and means occurred. Appellant argued on direct appeal that the

evidence presented Lat trial, froWever, Was iastlffi±Cient fo S|ust-a`in a COffviCtien on

three ofthe five COuntS Charged againsthin. QTote: the remaining two counts were

notchallenged on appeal) The three counts challenged were:

   A. The indictment alleged -that Appetlant committed aggravated sexual -assault

      ofa childby contact between Appe11ant9s genitals and complainant's mouth.

   B. The indictment alleged that Appellant committed indecency with a child by

      contactbetweenAppe11ant9s hand andcomp±ainaut9s genitals.

   C. The indictment alleged that Appellant committed aggravated sexual assault

      of a child by contact between Appellaut9s male sexual organ and

      cormplainant9-s female sexual-organ.

      In resolving the issue, the Court of Appeals did not cite to any dispositive

decision on the issue by this Honorable Court or any other court for that matter.


                                           2
The Court ofAppeals stated.- ccEven ifthe evidence was insufficient tO Support the

acts of aggravated sexual assault, an issue we do not decide, the jury could have

coHVicted apPellaut of con±imIOus Sexual abuse of -a child hased en these

unchallenged acts of sexual abuse", Eczr6z'7e V. Szczfe, No. 05-14-00508-CR (Tex.

App. Dallas, deliveredMay 12, 2015)(not designated forpublication).

         This Honorab-Ie Cout -has -rgivcted grorxping a-ggravated sex-tea:I assaults dy

transaction in 7rz-cfr 1,. Szczfe, and held that conduct oriented offenses proscribe

separate and distinct acts of commission. yz-ck I,. S##fe, 991 S.W.2d 830, 832-833

{Tex. Grim. App. 1999}+ Similarly, in PZzcy v; S#ffife, the analysisa made Clear ffiat

the offense ofindecencywith a child is a conduct oriented offense as well and each

act constitutes a different criminal offense. Pz'zzo 1,. Szcrfe, 235 S.W.3d 711 (Ten.

Grim. App. 2007}. Therefore, juror unanimity is required as -to the ccrmmissienof

any one of these acts.       Review in this case is therefore necessary and proper

pursuant to Tex R. App. Pro. 66.3(c) because the Court ofAppeals9 decision is in

cenfliet with a deeisien from this courfe, namely Pz'zzcl tz. S£#fe, 23_5_ S.W.3d 711

(Tex. Grim. App. 2007) and Frcz7¬CZ®S V. Sztz£e, 36 S.W.3d 121 (Tex. Crim. App.

2000).

         In FJltZZ7CZ'S V+ Sfofe, this Courfuapplied the HoJ/eJ, reasoning, _and found that

the jury7s charge created the possibility of a non-unanimous jury verdict. I:d. c!z

132.      U7ZZ-£eCZ Sac,feS v. jJoJJeJ,, 942 F.2d 916 (5th Cir. 1991).The offenses were


                                             3
charged to the jury in the disjunctive and should not have been, as is the case in

this situation. In the instant case, Appe11ant's right to a unanimous verdict was

violated. Appellantwas convicted entheunaninous verdict ofCorltinrous Abase

of a Child, but this ¬cumbre11a" charge was based on five different manner and

means .involving offenses including indecency with a child and aggravated sexual

assaltlt of a child, It is -tlndiSPuted tkat the -offense-S alleged were separate and

distincttransactions occurring at differenttimes, different days, charged in separate

manners and means, and charged from two different offenses in the Texas Penal

Code, specifically TEX. PEN. CoDE § 21.ll and TEx. PEN. CoDE §. 22,021.

      Appellant was convicted without a unanimous verdict specific to any ofthe

manners and means charged. It is extremely likely that several members of the

jury convicted Appellanton spedfic marmers.and mcauswhileLSev_eral _Otherjurors_

convicted Appellant on entirely separate manners and means. The possibility of

this occurrence is even more egregious in light of the insufficiency of evidence

urged on direct appeal for three ofthe manners and means alleged by the State out

ofthe five total manners and means charged to the jury. Appe11ant' contends that

this coulf is placed in the position ofspeculation ofthe fact finders9 decisions and

ultimate conclusion ofguilt. It. isa yiolation ofAppellant9s due pro_cess.and right_

to a fair trial by his peers to be found guilty ofan offense that lacks any specificity

or certainty as to which acts the jquy has found him guilty of committing and


                                           4
ultimately leads to Appellant9s conviction ofan 6fumbre11a" crime. As discussed in

Scfeczd v. 47~Z-ZO7CCZ, CCnothing in our history suggests that the Due Process Clause

would permit a State to convict anyone under a charge of cCrine9 so generic that

any combination of jury fmdings of embezzlement, reckless driving, murder,

burglary, tax evasion, or littering, for example, would suffice for conviction.99

£cafed u |4z~z'zoz7CZ, 5.01 U+S. 6247115 i Ed. 2d 55.5,111 S_ Ct_ 2491 (1991). The.

Texas Constitution requires a unanimous verdict in all felony criminal cases. TEX.

CoNST. art. V, § 13; See TEX. CoDE GRIM. PROC. ANN. art. 36.29(a) (West Supp.

2012).     A unanimous j_ury verdict ensures that the j_ury agrees on the factual

elements underlying an offense - it is more than mere agreement on a violation of

a statute. McKey v. IVor£73 Ccz7~O/I-J2CZ, 494 U.S. 433, 108 L. Ed. 2d 369, 110 S. Ct.

1227 (1990). The unanimi:ty requir_ement.is undercutwhen.ajury risks convicting

the defendant on different acts, instead of agreeing on the same act for a

conviction. I;d.

      The. Appellant is-entitled toa unarirmo:usverdict on each ofthe> five marmer

and means he has been charged with committing. Brow7Z V. Szczze, 508 S.W.2d 91

(Tex. Grim. App. 1974).      Chaly then, if convicted on two or more marmer and

means, -should-the Appellant be faced with the conviction for C®ntirmous Abuse ®f

a Child.

                       S_ECOJ>m GEOImun FO_RREVIEW


                                         5
TIRE COURT OF APPEALS ERRED V7ImN TIREY FAILED TO ADDRESS

TIE INSUFFICIENCY OF EVIDENCE ISSUE REGARDING AGGRAVATED

SE2flJAL ASSAIJLT OF A CImD BY CONTACT OF APPFLLAI9S

GENITALS TO CONILAINAnITS MOUTIITImOUGH CLOTENG.

                                  ARGtJRENT

Appellant. was .charged with _aggravated sexual .assault^ of _a child by _contact_

between Appe11ant9s genitals and complainant9s mouth.         The only evidence to

support this allegation was contact occurring through clothing. There is absolutely

no testimony or evidence, in the record to sappolf or dermnstrate|that Appeflant's_

male sexual organ (by bored genitalia) ever made direct contact with the

complainant9s mouth. Aggravated sexual assault, specifically by contact between

Appe11ant's mouth tocomPlainant's moth, carmot be sustained based on Contact

through clothing only.

      In light of the Cout of Appeals decision on the first ground (above), this

-issue was HOt addressed. Review is- proper pursuant to Ten R. App. Pro. 66.3(b}

and Ten R. App. Pro. 66.3®. in addition, pursuant to Tex. R. App. Pro. 47.1, the

Cout ofAppeals are required to review every argument raised by a party that is

necessary to disposition of-that appeal. Tex. R. App. Pro. 47.1; £Zgife v. Szofe, 15

S.W.3d 104, 105 (Tex. Crim. App. 2000); 47~JacSfro7Cg 1,. Sficzfe, 845 S.W.2d 909,

910 (Tex. Grim. App.1993); 7precz£7ze7/IO71CZ v. £fczfe2 828 S.W.2d 12213 (Tex. Grim.
App. 1992); Ma,7eZ'Z V. S£cz¢e, 852 S.W.2d 520, 521 (Tex. Grim. App. 1993); jz78O V.

Sfcztie, 822 S.W.2d 635, 636 (Tex. Crim. App.1991).

      TEX. PEN. CoDE §-21.ll, the statute for indeceney with a child, father

clarifies this in Part cc(C)" by Stating C¢In this section, ¢¢sexual contact" means the

following acts, ifcommitted with the intent to arouse or gratify the sexual desire of

any person: (1)any touching by a per-son, including touching throw-gh clothing, of

any part ofthe genitals ofa child; or a3) any touching ofanypat ofthe body ofa

child, including touching throuch clothing, with any pat of the genitals of a

person." TEX. PEN.CODE-§ 21.11{c)(1},{2}.

      The reasoning behind allowing c¢sexual contact" to include cctouching

through clothing99 was addressed by the Court ofCriminal Ai,peals in Ga,i-cz 1,. Sfczfe

and stated that ccthe mere inteaposit-ion ofa layer offdic between a person's fiand

and the genitals of another did not prevent the occuITenCe Of Sexual contact

because the touching will still engender the sense of feeling perceived by the

person touched." Gg#¢crv; S#fffe, 723 S.W.2d 763, 766 (Citing ReSJdefaV; S£c#e, 574

S.W.2d 558, 570 (Tex. Grim. App.1978). Cf. A4z'JeS v. S1#cz,e,157 Tex. Crim. 188,

247 S.W.2d 898 (1952) (no requirement of flesh to flesh contact in offense of

fndling).

      This definition for Ctsexual contact" is strictly limited for application to

offense ofindecency with a child by the words cain this section" though, and this is


                                          7
distinguishable from the offense of aggravated sexual assault. We must assume

that if the Legislative intent of aggravated sexual assault was meant to include
ccthrougfr clothing" then the language- would kave been inchaded or the statute

would have included the very specific defr]ition of c6contact" as done in the

indecency with a child statute. This intentional omission by the legislature

addresses the fact that {tthaough the clothing" is not part ofthe aggravated seeF[Ial

assault offense or any ofthe pertinent definitions.

      The Court ofCriminal Appeals has taken a distinguishing position regarding

contact -be:tWeen a Pat of the genitals of one pefsen and the ffiouth>of amofher

person. In Do7¬OJzo v. S,crfe, the Court of Criminal Appeals held that under the

definition of cdeviate sex intercourse9, CCany contact between a pat ofthe genitals

ofone person and the moutl ofanother person contemplates ... either penetration

of the mouth by bared genitalia or placing the mouth directly o7¬ genitalia of

another hlman being. [T]he conduct of appellant [, whose contact with genitalia

was through a layer of clothing,I did not censtitu±e an act of deviate sexual

intercourse within the meaning of ... See. 21.01(1)." Do7ZOfeO V. Sztzfe, 643 S.W.2d

698, 700 (Tex.Crim.App. 1982).

      Contact between Appe11ant9_s genitals .and complainant'_a mouth througk

clothing only, when charged as aggravated sexual assault, does not support a

finding beyond a reasonable doubt because the statute does not provide for


                                          8
touching through clothing.      Further there is no binding case law to support a

conviction based on contact by mouth to genitals through clothing.           The only

tot[ching ofmouth to genitals-must occur thaougk barer genitalia.        Had the State

charged Appellant with the offense ofindecency with a child by ccany touching of

any part ofthe body ofa child, including touching throuch clothing, with the anus,

breast, or any Part ®fthe -genitals ®f a -Person, it iS POSSible that the jt]ry, -the fact

finders in this Case, 'COuld have found beyond a reasonable doubt that Appellant

committed the offense of indecency with a child because the indecency with a

child stattcte permits_ the c¢coEtact" t® OCCur th]=ougk _clothing. TEE. PEN. CoDE §

21.ll(c)(2). However, this was notthe offense with whichAppellantwas charged.

                        TIIIRD GROtmun FORREVIEW

   TIE COURT OF APPEALS ERRED iVHEN TREY FAILED TO ADDRESS-

TEE    INSUFFICIENCY          OF    EVIDENCE         ISSUE     REGARDING          TIRE

INDECENCY VITH A CIHLD BY CONTACT CIIARGE INVOL\mrG

CONTACT BETlrmEN APPELLAIIT9S IIAir`D AI`ro COMPLAINAV'S

GENITALS.

                                    ARGtJRENT

      Appellant was `charge_d by indietmeut for indecency with _a_child by _con±asl

between Appe11ant's hand and complainant's genitals. There is no evidence to

supportthat Appe11ant9s hand evermade contactwith complainant's vagina.


                                           9
      In light of the Court of Appeals decision on the first ground (above), this

ground was not addressed. Review is proper pursuant to Tex R. App. Pro. 66.3(b)

and Ten R. App. Pro. 66.3(fy. In addition, pI]rSuant to Tex. R. App. Pro. 4.7.1, the

Court of Appeals are required to review every argument raised by a party that is

necessary to disposition ofthat appeal. Tex. R. App. Pro. 47.1; I;z-g7zf v. Szczfe,15

S.W_3d 104, 105 (Tex+ Grim. App. 2000}; J4z^zzzs:zroz¬g v. _Sfcz#e, _845 S.W_2d 9_097

910 (Tex. Grim. App. 1993); Wecz£feer/o71d 1,. S,cz£e, 828 S.W.2d 12, 13 (Tex. Crim.

App. 1992); Mg,7eZ-Z 1,. Sfcz£e, 852 S.W.2d 520, 521 (Tex. Grim. App. 1993); J7neO V.

Sfcz£e, 822 S.W2d 635,636 I(Tex_ GrimApp._ 1991)..

      Complainant emphatically states that Appe11ant's hand never touched her

vagina. Any conviction on this allegation would be based onmere speculation and

is completely unsupported by any factsandevidenc_e+
      ccJuries are not permitted to come to conclusions based on mere speculation

or factually unsupported inferences or presumptions." Hoaper, 214 S.W.3d 9, 16

(Ten. Grim. App. 2co7}.        6CA cone]usion reached by speeufation ... is not

sufficiently based on facts or evidence to support a finding beyond a reasonable

doubt." Jd. Even proofthat amounts`to a strong suspicion or probability ofguilt is

insufficiemt to sustain a coflvictien.   4J7e7Z V,. S£#fe, 249 S.W.3d -680, 704

(Tex.App.-Austin2008, no pet.).




                                         10
      On the record, it is clear that the jury was not rationallyjustified in finding

beyond a reasonable doubt that Appellant committed the act of touching the

co_mplainaut's genitals wifl Appeuaut9s _hand. instead, the evidence shows .that

Appellant touched the complainant9s thich and the area around the complainant9s

genitals.   The evidence was speculative, at best, and throughout I;oth of the

complainant'a _forensic interviewsLand the COmPlainant'a_testimony during the _trial,

the complainant is adamant thatAppellant did not touchhervagina.

                      FOURTH GROtnm FORREVIEW

TIE COtJRT OF APPEALS ERRED ln#EN TREY FAILED TO ADDRESS

TIRE INSUFFICIENCY OF EVIDENCE ISSUE REGARDING AGGRAVATED

SEXUAL ASSAULT OF A CIELD BY CONTACT OF APPELLAr`IT9S MALE

SE3HJAL ORGAN TO -COREIJAThIANTS FEn¢AIJE                       SE2HJAL ORGAN

TImOUGH CLOTHING.

                                  ARGUMENT

      Appellaffit was charged withthecommission ofaggravated sexual assatIItof

a child by contact between Appellant9s male sexual organ and complainant9s

female sexual organ. The only evidence that alludes to this allegation stems from a

vague reference to AppeIlant's ccbody pat" rchbing on compla-inant9s -vagina,-

however, the ccbody part' is never described with any specificity or further

describtionto indicate that the part referenced is Appe11ant9s male sexual or_gen. In


                                         ll
addition, the only contact between Appellant9s male sexual organ and

complainant9s female se"al organ alleged to have occurred is through clothing.

This-aggravated sexual assault allegation cannot be sustained based en contact

betweenthe sexual organs whenthe only contact occurred through clothing.

      In light ofthe Cout of Appeals decision on the first ground (above), this

grotmd was -not adore-ssed. R£v`i-ew i-s proper pursuant to Tax R. App. Pro. 66.3{b}

and Tex R. App. Pro. 66.3®. In addition, pursuant to Tex. R. App. Pro. 47.1, the

Court of Appeals are required to review every argument raised by a party that is

-necessary-to disPesitien offfi`at appeal. I-ex. R. App. Pro. 47.1; ££gfaf rty: S£cF¢e-,15-


S.W.3d 104, 105 (Tex. Grim. App. 2000); 47-"SgivOJ¬g V. Sfczfe, 845 S.W.2d 909,

910 (Tex. Crim. App.1993); WeczzJ2er/O7,CZ v. Szczfe, 828 S.W.2d 12,13 (Tex. Crim.

App. I992* fl4inZz v. S#tzze, 852 S.W.2d 520, 521 {Tex. erin. App. -1993),-J7%CJ V.

Sfczfe, 822 S.W.2d 635, 636 (Tex. Crim. App. 1991).

       We must assume that, ifthe Legislative intent of aggravated sexual assault

was meant to include {cthrotlgh elething", the the lapgI±age W;u±d faaVe been

included.   TEX. PEN. CoDE § 21.ll(c) explicitly states {.cln this section, ccsexual

contact" means the following acts, ifcommitted with the intent to arouse or gratify

the sexttal desire ®f arry person-. {1} a-ny fottching -by a person, inc±-uding touchi-n-g

throng]1 Clothing, ofany pat ofthe genitals ofa child; or (2) any touching ofany

part ofthe body of a child, including touching throuch clothing, with any part of

                                            12
the genitals of a person." TEX. PEN. CoDE § 21.ll(c)(1),(2). This definition for

sexual contact is strictly limited for application to indecency with a child by the

legislature -because ofthe explicit langtrage ofcointhis section". TEx. PEN. CoDE §

21.ll(c)(1),(2). Ifthe legislative intent had been to apply the definition ofccsexual

contact" and to include cctouching throuch clothing'; to the offense of aggravated

sexual assault, then- the langt±age would hoverbeen Clearly flcifed and irfeated to

encompass the offense of aggravated sexual assault under TEX. PEN. CoDE §

22.021.

                            PRAYERFOREEL-IEF

      Appellant respectfully prays that this Court grant discretionary review and,

after full briefmg on the merits, issue an opinion reversing the Court ofAppeals9

j_udgmeut and remanding the-cansetotkeLtrial couat forane:wtrial.



                                                   Respectfully submitted,

                                                   /s/PiperMcCraw
                                                   PiperMcCraw
                                                   Bi±r Cardbto. 24.045261

                                                   PiperMcCraw, P.C.
                                                   1504 First Avenue
                                                   McKinney, TX 75069
                                                    (972)767rd369 Office
                                                    (972)767-6368Fax
                                                    piperenccrawgantt.com

                                                    Attomey forAppellant
                                         13
                      CERTIFICATE OF COMPLIANCE

      Pursuant to TEX. R. App. P. 9.4(i)(3), undersigned counsel certifies that this

briefcomplies with the type-volume limitations ofTEX. R. App. P. 9.4(i).

      1. This briefcomplies with the type-volume limitation ofTEX. R. App. P.

         9.4(i)(2)a) because this briefcontains 2, 913 words, excluding the parts

         ofthe briefexempted by TEX.R_App.P. 9._4(iX1I

      2. This briefcomplies with the typeface requirements ofTEX. R. App. P.

         9.4(e) and the type style requirements ofTEX. R. App. P. 9.4(e) because

         this briefhas been prepared in aproportionally spaced typeface using

         Microsoft Word 2011 in 14 point Times New Roman.

                                                          er McCraw
                                                    Piper McCraw

                         CERTIFICATE OF SERVICE

      I, the undersigned, hereby certify that atrue and correct copy ofthe

fioregoing petition for Discretionary Review was servedon thisthe 13th day of

July, 2015 via the service function in eFile Texas on the attomeys for the State:

Emily Johnson-Liu, Assistant District Attomey, Collin County, Texas at eiohnson-

liu@,co.collin.tx.us and daa:ppcals@coIIincounty.tx.gov.

                                                    /s/ Piner McCraw
                                                    Piper McCraw




                                         14
APPENDK




   15
AFFIRM; and OpinionFiled May 12, 2015.




                             In-e
                        Cou|rfof|ZL:ppea|s
    ffifdlD|f=tr|c*ofTexaf5a¬Dallas
                                    No. 05-14-00508-CR

                              LENI`RE P. EARBIN, Appellant
                                              V.
                            TIE STATE OF TEXAS, Appellee

                     On Appealfrom the219th JudicialDistrict Court
                           Collin County, Texas Trial Court
                                 Cause No. 219-80478-2012


                              IVIEMORANDUM OPINION
                      Before Justices-Francis, Long-Miers, and lhthitehiH
                                Opinionby Justice Long-Miers
       Appellant Lennie P. Earbin pleaded not guilty to the offenses ofcontinuous sexun.1 abuse

ofa child and indecency with a child, both involving his step-granddaughter. A jury convicted

appellant ofcontinuous sexual abuse ofa child, but acquitted him ofindecencywith a child. The

cout sentenced appellan:t to serve 25 years in prison. h three issues, appellant complains that

the trial j_udge wrongly instructed the venire,_ the evidence is insufficient to support the

conviction, and there was error in the jlny Charge. We affirm the trial court9s judgment. We

issuethis memorandum opinionbecause the issues are settled. TEX. R. App. P. 47.4.

                                   -FACTUAL'BACKGROunlrm


       At the time oftrial, JH was 14 years old. She testified thatwhen she was around 10 or ll

years old, she lived in an apartment with her mother, who was there on and off; her m'atemal


                                              16
grandmother Q`Tana); her matemal great grandmother (Grandma); and appellant, who was Nana9s

frusband and JH9s step-grandfather. Grandma mostly stayed in her room watching television

with the door closed. Nana was a home health nurse and was gone a lot. JH9s mother was also

gone a lot doing her ccorm thing"; she gave custody of JII to Nana. Sometimes JII was home

alone with appellant and Grandma, particularly after school.

       JII testified that the first thing she remembered appellant doing ccwas putting a grape in

his mouth and giving it to me from his mouth[.I" She did not think there was anything wrong

with that and told Nana. Nana did not say anything, but appellant told JII that was ccour little

secret" and she should not tell people about it. Then she said appeuant would sit in a chair and

make her sit in his lap c¢and I would be moving and stuff.99 She sat ccstraddle[ed]" appellant,

ccsitting the opposite direction like face-to-face.99 She said if appellant ccgot excited,99 his penis

ccwould go up" and she said she felt it c6against my butt," CCrubbing against my butt."          This

happened throuch their clothing. JH said appellant breathed ccreally hard99 when that was going

on. JII testified that sometimes appellant ccput me on the bed" and closed the door. She said he

touched her with his hands on her thists and ccbutt" and ccright before my vagina." She said it

happened ccmany" times, ccfor areally long time, for years." She said appellant touched her in the

garage, living room, and in her bedroom. When he was on the couch in the living room, he

would pull JII c6towards him over and _over again fo, -I guess, feel." She said she fall his penis
ccrubbing against my butt." She also testified that appellant touched her ccbutt" with his hand

throughherunderwear.

       Ill also testifiedthat On abouttwo OCCaSiOnS aPPelrant ftyushedme lil Iwas on myknees

and he put my face dorrm there, and he would make me rub my face on him.99 His hand was on

the back ofher head, moving her head while she struggled to get away. She felt his penis with



                                                 17
her nose and mouth, over his underwear. And she said appellant would also grab her hand and

put it c{dorrm there overhis clothing." She said she could feel his penis withherhand.

       JII talked about times in her room when appellant tied a blanket to the upper bunk bed

and draped it cclike curtains." He got on one side ofthe blanket and JII was onthe other side. He

told JII to cat,ire the part ofthe blanket that was up hich that poked out or something." She said

this happened many times and sometimes they were on ccdifferent sides" ofthe bunk beds. She

said she would c6end up having to bite whatever part it was[.]" She said she did not know what

he made her bite. He told JII itwasjust-a game andnot to tell anyone.

       JII testified that all this sexual contact was through clothing. And when she was asked

whether appe11ant's penis ever touched her vagina, she said no.           She said she never felt

appellant9s penis onher vagina or near hervagina.

       JH testified that she loved school and it c¢was freedom for me from coming. home and

being touched." One day in late Apri12011 when JII was withNana, she told Nana about some

ofthe things appellant had been doing to her. JII said cc[i]t was extremely hard" to tell,Nana,

because -tfiat was `her-husband. But she felt tcrelieved" after she told. She`said she `wascloserto

Nana than her mother, but Nana started acting ccdistant" to JH. JII said she eventually told her

mother, who calledthe police, and an investigationwas started.

       In June 20±1, appellant senthis step-dauch:tor, JH9s mother, atext message stating:

       Good Morning Mininia! Last night I called my wife and came clean about what
       happen [sic]. Now I9m apologizing to U and [JH] if U will allow me 2. I did
       touch [JH] in in inappropriate way, and I9m sorry. I do not want to minimize
       what I've done but u need [sic] it was not for no long period oftime. Ifu like I
       can call u and look at u face 2 face to apologize next time I9m home. I know that
       what ever [sic] relationship we had has -been destroyed -by me and I9m deeply
       sorry. I pray that u can find it inu r heart to forgive me somewhere inthe future.
       I realize I need help! I9m asking God almighty to help all ofus througll this time
       ofheartache. I Love U, [JIH, and Jo-Jo!!I For real! PaPa!!I



                                                18
       At some. point, JII leamed that appeuant was being accused of raping her.                  She said

appellant did not rape her, he molested her.          She agreed to make a recording in which she

recantedlthe accusations; she said she did it for Nana. But she said she felt terrible afterwards

because she lied on the recording.         She said everything that she testified about in trial that

appellant didto her was true.

                                   SIJFFI¬IENCYOF TEE EvIDENCE

        In issue two, appellant argues that the evidence is insufflCi;nt tO Support the conviction

for continuous sezri]al abus; ofa child.

                                           standardofReview

        when an appellant challenges the sufficiency ofthe evidence to support a conviction, we

review all the evidence in the light most favorable to the verdict to determine whether any

rational trier offact couldhave foundthe essential- elements ofthe offense beyond a reasonable

doubt. J7z'se v. Sfc,,e, 364 S.W.3d 900, 903 (Tex. Grim. App. 2012). Evidence is sufficient if

c¢the inferences necessary to establish guilt are reasonable based upon the cimulative force ofall

the evidence when¬ensidered in the -1i-ght most -favorable tothe verdict." j¢;. Ifthe -evidence is

conflicting, we cccpresume that the factfinder resolved the conflicts in favor ofthe prosecution9

and defer to that determination.99 JZZ. (quoting tJc!cdso73 V. 7rz-rgz-72Z-CZ, 443 U.S. 307, 326 (1979)).

This_standardis_thesameLfor b`OthdirectandCircumstantial_eridenQeLI;d

                                                 Analysis

        Aperson commits continuous sexual abuse ofa child if:

        (1)   during a period that is 30 or more days in duration, the person commits two
        ormoreacts of-sexual`abuse . . .,--and

        (2)    at the time ofthe commission ofeach ofthe acts ofsexual abuse, the actor is
        17 years ofage or older andthe victim is a childyounger than 14 years ofage.



                                                     19
TEE. PENAL CoDE ANN. § 21.02(a) (West Supp. 2014). The jury is not required to agree on

which specific act of sexual abuse the defendant committed; it is sufficient ifthe jlny agrees
c6that the defendant, during a_period that is 30 or more days in duration,. committed two or more

acts of sexual abuse." jiJ. § 21.02(d).      A child9s testimony alone is sufficient tO Support a

conviction for continuous sexn]al abuse of a child. TEX. CoDE GRIM. PROC. ANN. art. 38.07(a)

{West Stxp- 2-014},
       cc[A]cts of sexual abuse" for purposes Of COntinuOuS Sexual abuse of a child include


indecency with a child and aggravated sexual assault of a child.      TEX. PENAL CoDE ANN. §

21.02(c)(2}, (4). The State sought to prove appellant committed continuous sexual abuse of a

child through flVe different acts Of Sexual abuse.        Two of those acts of sexual abuse were

aggravated sexlral assault of a child by sexual-organ-to-sexual-organ contact and by contact of

the child9s-mo:tlth-toapPedlant9a sext[al-or-gas. See z'#. § 22.-02l{aXIX-BX-i-i-i)&{v}. The ¥emaini-ng

three acts of sexual abuse were indecency with a child by contact ofthe child9s buttocks with

appe11ant's sexual organ, the child9s genitals with appe11ant's hand, andthe child9s handwithpart

ofap_pe11ant3s genitals. See z'd. _§ 21.ll(a)(1),. (c) (West 2011).

       Appellant argues that there is no evidence to support the two acts of aggravated sexual

assault of a child and no evidence to support one of the acts of indecency with a child-by

contact of the child9s genitals with appe11ant9s hand.            Appellant does not challenge the

sufficiency ofthe evidence withrespectto the othertwo acts ofindecencywith a child, that is, by

contact of the child's buttocks with appellant's sexual organ and the child9s hand with part of

appe11ant's genitals.

        We have reviewed the record with respect to the two unchallenged acts of sexual abuse.

The child testified that appellant made her sit on his lap and she felt his penis on her buttocks.

She also testified that appellant forced her hand on his crotch and she felt appellant9s penis

                                                   20
through his clothes. Even if the evidence was insufficient to support the acts of aggravated

sexual assault, an issue we do not decide, the jlny COuld have COnViCted aPPellant OfCOntinuOuS

sexual abuse ofa child basedon these unchallenged acts,of sexual abuse. We resolve issue two-

against appellant.

                            JuDICIALCoMnfflNTSDtmINGVomDIRE

       In issue one, appeIIant argues thatthe that court gave wrong instructions to the venire and

violated his righi to be presumed irmocent. The State argues that appellant did not preserve this

issue for review because he did not object when the comments were made and, even ifhe had,

there was no `eH=or. Appellan± concedes he did net object, but argues -that m -objection was

requiredbecause the instructions constituted fundamental eITOr.

                                       Standard ofReview

       Ordinarily apartymust object at the time alleg.eddy improperj_udicial comments are made

to complain about those comments on appeal. U72faCZrf V. Sftzfe, 400 S.W.3d 94, 99 (Tex. Grim.

App. 2013). We review an allegationthat atrial court made improper comments during voir dire

as a question oflaw. see Dew C72eJce. Co. v. jI;cr#cz-J, 46 S.W.3d 237, 240 (Tex. 2001). And we

review those comments in the context ofthe entire voir dire examination. See J7g re Cozrez72Z'twCe73f

a/77,'r,z, 451 S.W.3d 462, 470 (Tex. App.-Houston [14thDist.I 2014, no pet.).

                                          The Comments

       At the beginning ofvoir dire, the trialjudge gave several opening remarks and explained

the voir dire process. He gave examples ofhowjurors must followthe law even ifthey disagree

with it. He also gave examples ofanswers that make lawyers ccnervous," such as when a person

has a strong religious or moral belief that camot be set aside, because something similar has

happened to the person or a finily member, or because the person disagrees with the law and



                                                 21
refuses to followthe law. Then thejudge gave an example to the venire about howthey do not

knowanything aboutthe casethey are aboutto hear:

       Let me give you an example about how you don9t know anything about this case.
       FVenire memberl.

       IVENIRE MEMBER]: Yes, sir.

       THE COURT: lhthere are you? There you are. Oh, you can keep your seat, that9s fine.
       Youwork at ParkPlace Lexus over in Piano; is thatrich:I?

       prENR±MEMBERl: Thatiscoffect,sir.
       TIIE COURT: Well, youknow afriend ofmine Craig Ellis. Youknow Craig?

       IVELunE MEMBER]: I knowthe name. I don3tworkwithhim directly.

       TIIE COURT: Okay, a prince ofa guy. I knew himwhenhe worked at another
       dealership. I recent-ly sold -my car and -got adifferent,car and -now I9,m thinking
       about selling my wife9s car and getting a different car. Would you like to buy my
       wife9s car for $15,000?

       [vENIRE MEMBER]-. Doin9t know anything about your wife9s car. I would have to
       look at it, sir.

       THE COURT: Let me tell you a little bit aboutit. The first four letters ofthe type of
       car, the make ofthe car is [sic] M-e-I-c. Are you Tea-dy?

       FffiNRE REMBER]: Yes, sir.
       TIE COURTi Youw_anllo_bnyj.I.2

       IVENIRE MEMBER]: No, sir.

       TIE COURT: AIL right. It9s a 2007-. Are youreadyto buy it?

       IVENIRE MEMBER]: No, sir..

       THE COURT: All richt. It9s got 39,000 miles. Pretty lowmiles for a2007.

       [VENIRE hffiMBER]: Thatis correct.

       TIIE COURT: Are youreadyto buy it?

       IVENIRE REMBER]: I'm curious.




                                               22
       TIIE COURT: You9re curious. lhthat you9re trying to do right now is decide is
       it a Mercury or is it a Mercedes. Okay, youknow more aboutmy wife3s car than
       you know aboutthis case. So what9s yourverdict inthis case?

       IVENIRE REMBER]: I don'thave one, sir.

       TIIE COURT: All right. You don't evenknowwhetherthis is a criminal case or
       a civil case where people got in a car wreck and somebody got injured or
       contracts or a family divorce case. You gotno idea, do you?

       [VENIRE MEMBER]: No, sir, I'm in a State ofTexas courtroom. That9s all I know.

       TEE COURT: That9s all you know. I promise you at the end ofthis pat ofthe
       trial about this case you911 know absolutely the same amount as you know right
       now, and you9re not willing to buy that car because youjust don9t know enough
       about it.

       FffiNIRE RffiMBE-Rl: That9-s-c®ffect, -sir.

       TIIE COURT-. You may have heard some things you think, hun, I9m starting to
       draw some conclusions. I9m more interested than I was before but I7m not going
       to'dare --you9d be sillyto tell me you9dbuyher car; wouldn9tyou?

       IVENIRE MEMBER]: I would agree withyou,

       THE COURT: Okay. Just like it would be silly to ask you what your verdict
       would be in this case until you hear the evidence in this case. So no one is going
       to askyouwhat yourverdict is. Everybodyis going to askyouto followthe law,
       okay. You should have boucht her car, because I9m the one that drove the
       Mercury and s.he9s the one that drives the Mercedes.

       [vENIfuMEMBER]: Good choice.
       TIIE COURT: But even thouch it mish:I have been what yori would have done until
       youknow about it it9sjust foolishto do somethinguntil youknowabout it.

       IVENREir4EMBERt: I agree,sir.
       THE COURT: Just like it9s foolish to say what you will or will not do in this case
       until youknowabout it.

       Appellant argues that cc[t]he discussion continued and involved several panel members

being asked direct questions by the givdge. +Cine of those involved a vedre member-who -was

asked whether he could convict based solely onthe testimony ofa child ifhe believed the child

beyond a reasonable doubt. Earlier, the venire member had expressed concem that it was ccone

                                               23    I
person9s word against another person9s word" and agreed with another venire member that CCthe

bar is set fairly high" ccwhen that is the only piece of evidence that you have.9' The judge was

attemptingto clarifythe venire member's earlier answer and said:

       IVenire member], let me make sure you9re not changing the question. The
       question is youbelieve the child beyond areasonable doubt and you7re convinced
       beyond areasonable doubt ofaperson9s guilt. Not would you be but after you9ve
       heardthe evidence you are.


       [The prosecutor] was asking if you9re convinced beyond a reasonable doubt
       would you fmd them guilty and you said, well - you forgot about the part about
       you9re convinced beyond a reasonable doubt and went straicht to the pat there9s
       one witness and left offthe patbeyond areasonable doubtyou9re convinced.

       Btlt ifyou Say I9-m never going to -her convinced, I9m met even -going -to keep-an
       open mind then that's one thing. But ifyou say I911 keep an open mind but Pm
       telling you it9s goingto be difficultWell, that9s fine.

       Iwouldholpe nobodywould say, oh, tt's going to be easyfor me to find somebody
       gu:ilty. It ought to be difficult. It ought to be difficult to find somebody nat guilty.
       J£Jir er cJzJffiffzc¬aIZfjch. You've got tar really fceus- oH theevidenee-and determine in
       your olmmind whether you9re convinced.

@mphasis added.)

       The v]enire _member .expressed coneem that cc_it7s- going to _be very, very _diff1_Ced± _tO_

convince me if it's one person's word against another person9s word.99 The judge reminded the

panel that no onehad said anything about anotherperson9s word, and said:

       I know it9s hard not tojump ahead butjust like the man who didn9t want to buy
       my car and now he kind of does, youjust got to wait to hear everything. You
       can9t draw conclusions before you know what the evidence is because at this
       pointyou still haven9theard the evidence.

                                              Analysis

       Appellat argues Lthat the jedge9s insfroedons were improper -because he CCsfrould have

first Stated that [aPPe11aut] is presumed innocent."        He cofltends that the judge9s CCinitial

explanation" that was c6hammered home with the . . . real-world example, asked thejurors to put


                                                  24
themselves into a specific factpattem, andhold offinmaking a determination onthe defendant's

guilt or irmocence." But at the point where the judge gave the car example, the judge had not

told the venirethat the case ontrial was a criminal case. Shortly after giving the car example, the

judge informed the venire that the case was a criminal case and instructed them on the

presumption ofinnocence:

       Let me explain some things that apply in every case where a'person is charged
       witha crinlinal offense. Every-well, everythinghasto start somewhae. Vthere
       a trial starts in a criminal case is the presumption of innocence. Just like you
       leamed in eighth grade civic9s [sic] class. Everyone is imocent until proven
       guilty or unless proven guilty.

       Now, how do you prove somebody guilty?` The prosecutor has to present
       evidence. They2ve gotthe -burden ofproofto pieseutevi'dencethatconvincesyou
       beyond areasonable doubt ofaperson9s guilt.



       If after you9ve heard the evidence you are convinced to your orrm personal
       satisfactionthat you do not have a reasonable doubt as to aperson3s guiltthen the
       law requires you find them guilty. Ifonce you hear the evidence you think either
       I9m convincedthey didn9t do it or I9mjust not sure they did it. I9m not convinced
       they did it. I9m not convinced beyond a reasonable doubt. If you9re not
       convinced beyond areasonable doubtyou9re requiredto findthem not guilty.

       Andthen laterinvoir dire afterthe exchange -betweenthejudge andthe venire member

about a child as the sole witness, thejudge explained:

       Butwhatwewant everybodyto do isjust sayI'm goingto waituntil Ihearthe evidence.

        You asked me will I find aperson guilty. I have no idea until Ihear the evidence.
        Would I find them not glrifty. Well, I havene idea until I hear-the~evidence. I9m
        going to presume that they9re not guilty to start offbecause I haven9t heard any
        evidence. I9m only goingto switchthat presumption where I find them guilty and
        get rid ofthat presumption once I hear enouch evidence to convince me beyond a
        reasonable doubt. Up until then I9m goingto presume him not guilty.

       AppeIIant concedes-that thetrialjudge ccwenton to definethepresumption ofinnocence,"

and that he and the State had an opportunity to discuss the presumption with the venire. But he



                                                25
contends that the venire was ¢calready prejudiced by the trial judge9s erroneous instruction and

real world example upon whichto base their decisions throughout the trial."

       WJe `haVe reviewed the¬OmPlained-ofjudicia-I -ccmmen-ts -i-n theContext-of-the entire VGir

dire and have found no support for appellant9s arguments. We conclude that the trial judge9s

comments did not infiinge upon appe11ant3s rich:t to be presumed irmocent and that an objection

was required to preserve a complaint on this issue. Because appellaut did not object, this issue

presents nothing for our review. We resolve issue one against appellant.


                                        THE JuRYCHARGE

       In issuethree appeI±ant argues thatthejury charge contained reversi-ble error -because the

definition of indecency with a child did not contain the language ccincluding touching through

clothing."

                                       Standard+ofReyierty

       In our review ofallegedjury charge error, we first determine whether the charge contains

error. Bczrrz-as v. Srtzfe, 283 S.W.3d 348, 350 (Tex. Grim. App, 2009). Ifit does, then we must

determine whether the appellant suffered harm. JZZ.         Because appellant concedes he did not

object to the jury charge on this basis, we examine the record for evidence of egregious harm.

jiJ. ccErrors thatresult in egregious harm arethose that affect cthe very basis ofthe case,9
                                                        i
cdeprive the defendant of a valuable right,3 or Cvitally affect a defensive theory." IVgo i,. Sfczfe,

175 S.W.3d 7383 750 (Tex. Grim. App. 2005) (quoting Ha,fc73 17. Sfczze, 922 S.W.2d 166, 171


(Ten. Crirm. App. 1996), overruled on other grounds by Gelinas v. State, 398 S.W.3d 703 (rFex.

Grim. App. 2013)). We assess harm in light ofthe entire jury charge; the state ofthe evidence,

including contested issues and the welch:I of the probative evidence; the arguments of counsel;




                                                 26
and any other relevant information revealed by the record as a whole.     O/I-vczs v. Sfczfe, 202

-S.W.3d 137, 144 grex. Grim. App. 2co6).




                                            Analysis

       inthe statute defining indecency with a child, the legislature defined ccsexual contact" to

inch±de touching throustcbthing. "x. PENAL CoDEAEN. §21.11(c}. Thejurychargeinthis

case defined ccsexunl contact" intwo differentplaces; one contained the language c¢including

touchingthrough clothing" and the other didnot.1

       Appellanl QOntendS that the failure to include the language ccinchrding touching througfr

clothingJ9 inthe definition ofindecencywith a child causedhim egregious harm because
ccaggravated sexual assault does not permit a conviction based on . . . contact through clothing."

He also argues that it could have caused thejuryto be confused about the difference between the

allegations of indecency with a child and aggravated sen]al assault of a child and could have

caused thejuryto convict based on acts ofsexmal abuse for whichthere was no evidence.

Assuming this was error, we conclude that appellant did not suffer egregious harm.

       We have said that aggravated sexual assault ofa child may be through clothing and reject

appellant's argument that the jury could have been confused about the difference between the

two offenses based on the failure to include the language ccincluding touching throuch clothing."

See JJJczSIfczr,z'7!eZ 1,. Sfczfe, 452 S.W.3d 874, 879-80 (Tex. App.-Dallas 2014, pet. ref9d).

Additionally, we previously concluded that the evidence was sufficient to support the verdict

based on the allegations of indecency with a child alone. As a result, the jury's verdict is not

based on acts of sexual abuse for which there was no evidence. We conclude that any error in

thejury charge was notharmfi]1. We resolve issue three against appellant.



                                                27
           Tin thejury charge on continuous sexual abuse ofa child, thejudge listedthe following acts ofindecency with a child without stating

thatthe sexual contact could be through clothing:


           intentionally or knowingly, with the intent to arouse or gratify the sermal desire ofany person, engage in semal contact by
           touching the buttocks of [JH], a child younger than seventeen (l7) years of age and not the spouse ofthe defendant, by
           means ofdefendant7s male sexual organ;

          intentionally or knowingly, with the intent to arouse or gratify the sexual desire ofany person, engage in sexual contact by
          touching pat ofthe genitals-of [JIH, a child younger thin seventeen (17) years ofage and notthe spouse ofthe defendant
          by means ofdefendant9s hand;

          intendonally or knowingly, with the intent to arouse or gratify the sexual desire ofany persons engage in Sexual COntact by
          causing the hand of FT, a child younger than seventeen (17) years of age and not the spouse ofthe defendant, to touch
          part ofthe genitals ofsaid defendant[.I




                                                             CoNCLUSION

           We affirmthe trial court9sjudgment.




                                                                           AIlizabeth Long-Miers/
                                                                           ELIZABETHLANG-NIERS
                                                                           JUSTICE




Do Not Publish
TEX. R. App. P. 47

140508F.UO5




                                                                      28
                            In-a
                       Cou|rfof|=:ppea|g
    FifdlD|f=¬r|c*ofTe=afiLa¬DaIlaf=
                                     JUDGmENT

LENNIE P. EARBIN, Appellant                       OnAppeal fromthe 219th Judicial District
                                                  Court, Collin County, Texas
No. 05-14-00508-CR       V.                       Trial Cout CauseNo. 219-80478-2012.
                                                  Opinion deliveredby Justice Lung-Miers,
THE STATEOF TEXAS, AppeIlee                        Justices Francisand lhThitehill participating.

       Based onthe Court9s opinion ofthis date, thejudgment ofthe trial court is AFFIRI\RED.


Judgment enteredthis 12th day ofMay, 2015.




                                             29
