                In the
           Court of Appeals
   Second Appellate District of Texas
            at Fort Worth
        ___________________________

             No. 02-19-00022-CR
        ___________________________

CARLOS IVAN DELANGELHERNANDEZ, Appellant

                       V.

             THE STATE OF TEXAS


   On Appeal from Criminal District Court No. 3
              Tarrant County, Texas
           Trial Court No. 1558072R


  Before Sudderth, C.J.; Womack and Wallach, JJ.
  Memorandum Opinion by Chief Justice Sudderth
                       MEMORANDUM OPINION

                                   I. Introduction

      A jury found Appellant Carlos Ivan Delangelhernandez guilty of continuous

sexual abuse of young children—the first count of a five-count indictment alleging

various acts of child sex abuse1—and the trial court sentenced him to 50 years’

confinement.2 See Tex. Penal Code Ann. § 21.02.

      In his first point, Delangelhernandez complains that count one of the jury

charge was defective in that it misplaced the “intentionally or knowingly” mental state

in the application paragraph,3 permitting the jury to convict him on a finding of

“intentionally or knowingly” instead of the specific intent requirement of indecency

with a child. In his second point, he argues that the jury charge’s mental state

definitions were erroneous because they were not tailored to the conduct element of


      1
       The remaining four counts were all lesser offenses: two counts of aggravated
sexual assault of C.A. (one of which was waived before trial), one count of indecency
with a child with C.A., and one count of indecency with a child with A.P. See id.
§§ 21.11, 22.021.
      2
        The minimum sentence for continuous sexual abuse of young children is 25
years’ confinement. See Tex. Penal Code Ann. § 21.02(h) (stating that the offense is a
first-degree felony with a punishment range of 25–99 years’ confinement or life
confinement).
      3
        The application paragraph is the jury charge’s “heart and soul” because it
specifies the factual circumstances under which the jury should convict or acquit.
Vasquez v. State, 389 S.W.3d 361, 367 (Tex. Crim. App. 2012). That is, it explains to
the jury in concrete terms how to apply the law to the case’s facts. Yzaguirre v. State,
394 S.W.3d 526, 530 (Tex. Crim. App. 2013).


                                           2
aggravated sexual assault of a child, the first predicate offense alleged in count one.

Because the record does not reflect that the trial court’s errors, if any, caused

Delangelhernandez egregious harm, we affirm.

                                   II. Discussion

      Although Delangelhernandez did not object to the jury charge during trial, we

must review “all alleged jury-charge error . . . regardless of preservation in the trial

court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). Preservation, or

the lack thereof, merely determines whether we review the error for actual harm or

egregious harm. See Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013);

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see also

Tex. Code Crim. Proc. Ann. art. 36.19.

      Egregious harm—the standard applied to unpreserved charge error—is a “high

and difficult standard” to meet, and such a determination must be “borne out by the

trial record.” Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015). The

appropriate inquiry for egregious harm is fact- and case-specific. Gelinas v. State, 398

S.W.3d 703, 710 (Tex. Crim. App. 2013); Taylor v. State, 332 S.W.3d 483, 489 (Tex.

Crim. App. 2011). In making an egregious harm determination, we must consider

“the actual degree of harm . . . in light of the entire jury charge, the state of the

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

argument of counsel and any other relevant information revealed by the record of the

trial as a whole.” Almanza, 686 S.W.2d at 171. See generally Gelinas, 398 S.W.3d at 708–

                                           3
10 (applying Almanza). Errors that result in egregious harm are those “that affect the

very basis of the case, deprive the defendant of a valuable right, vitally affect the

defensive theory, or make a case for conviction clearly and significantly more

persuasive.” Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at 172).

         Assuming, without deciding, that the trial court erred,4 based on our analysis

below, we conclude that egregious harm that would justify reversal did not occur.

A. The State of the Evidence

         A.P., A.P.’s mother, C.A., C.A.’s mother, two sexual assault nurse examiners,

the investigating detective, a forensic interviewer, Delangelhernandez, and

Delangelhernandez’s older brother Jose testified during the guilt-innocence phase of

trial.

         A.P.’s mother moved A.P. and his brother to Texas in September 2008 so they

could live with Jose, her boyfriend, who had a son who was a little older than A.P.

When they moved in, Delangelhernandez was also residing in the same house. A.P.,

who was fifteen years old at the time of the trial in January 2019, described

Delangelhernandez as having been “like a cool uncle” who took the boys to



        An error analysis is not required when a harm analysis is dispositive. Wooten v.
         4

State, 400 S.W.3d 601, 607 (Tex. Crim. App. 2013) (“Finding our harm analysis thus
dispositive, we need not address whether the trial court did, in fact, err not to include
the instruction.”); Roberts v. State, No. 02-17-00108-CR, 2018 WL 1755223, at *3 n.5
(Tex. App.—Fort Worth Apr. 12, 2018, no pet.) (per curiam) (mem. op., not
designated for publication).


                                            4
restaurants and the park, played video games with them, and brought them a puppy

and other gifts.

       A.P. recounted that one February evening, when A.P. was around six years old,

his mother and Jose went out and Delangelhernandez babysat. After distracting the

other children with video games,5 Delangelhernandez took A.P. into a darkened

bedroom where he pulled down A.P.’s pants and underwear and touched and rubbed

between A.P.’s butt cheeks with his penis. A.P. said that the room had twin beds and

that Delangelhernandez placed him on his side on the right bed, facing the wall,

before he pulled A.P.’s pants and underwear down to his knees. Delangelhernandez

was on his side right behind him. The bedroom door was open and A.P. could hear

the other children playing video games while it happened.

       A.P. said that Delangelhernandez’s penis had felt warm and wet. He was

confused but did not try to fight back because he “wasn’t a hundred percent sure, like,

that was – how to feel about that because [he] didn’t know what good and bad was

yet,” and because Delangelhernandez was someone he was supposed to look up to

and respect. According to A.P., the encounter spanned more than five minutes but

less than ten minutes. A.P. did not know if Delangelhernandez had ejaculated. After

Delangelhernandez left the room, A.P. put his clothes back on and thought about


       A.P. said that Delangelhernandez had also brought the puppy that night, but
       5

his mother testified that Delangelhernandez had brought the puppy on a different
occasion.


                                          5
what had happened before rejoining the other children.6 Delangelhernandez moved

out in 2010 and into C.A.’s aunt’s house.

      C.A., who was nineteen at the time of the trial, testified that Delangelhernandez

had been his parents’ friend. At some point before 2013, while Delangelhernandez

was living in C.A.’s aunt’s house, C.A. stayed over.7 C.A. recalled that it was a

summer evening and that he had gone to bed on the floor between his cousin’s bed

and Delangelhernandez’s bed.8        He woke up that night to Delangelhernandez’s

touching him.

      C.A. described the encounter as follows,

      I remember -- I remember just waking up and just feeling this pain. I
      can’t really describe the type of pain that I felt, but it really hurt. And I
      felt it in my back, lower back and in my groin area. It really hurt a lot. At
      that time I had no idea what it was. At first I felt like I was having a wet
      dream or something, but I came to conclusion, no, I’m wide awake and
      something is happening. . . .

      It felt -- it felt erect and it felt like hard, like it was ready to do something
      to me. And at that moment he just put it inside my anus and just started
      going back and forth, back and forth, and just -- was just leaning against
      me and just whispering -- I don’t understand what he was saying, but he
      was just mumbling and he was whispering, whispering.


      6
       A.P. did not recall exactly how old he was when the incident occurred but said
he had probably been between six and eight years old.
      7
       C.A. could not remember exactly how old he was but stated that he had been
young, between ages eight and eleven.
      8
       Delangelhernandez said that when C.A. had slept over, they had always given
him a bed.


                                             6
The encounter lasted between five and ten minutes.                   C.A. said that

Delangelhernandez had ejaculated because when he went to the bathroom and wiped

his butt, he saw semen. The next morning, C.A. tried to act like nothing happened

and went home.

      C.A. said that the second incident happened when he was between twelve and

fourteen years old. His parents had invited Delangelhernandez to a get-together at

their house. C.A. went to bed, and as he was going to sleep, he felt someone touch

his penis over his clothes. When he woke up, he saw Delangelhernandez standing

there. Delangelhernandez told him that he had just come in to turn off the TV, and

he turned off the TV and walked out.

      C.A. did not tell anyone until 2017, when he revealed it to his girlfriend during

an emotional argument late one night. At his girlfriend’s urging, C.A. immediately

woke his parents up and told them about the first incident.9 C.A.’s mother testified

that this occurred on June 12, 2017, and that when C.A. woke them, he was “crying

like a baby,” and after she asked him what was wrong, he related what

Delangelhernandez had done. C.A.’s parents called the police a few hours later, and

sometime after making their report, it occurred to C.A.’s mother that if this had



      9
       C.A.’s older brother had died, which had been very hard on his family, and he
had not wanted to make things worse. Delangelhernandez testified that C.A. and his
older brother used to come over to their aunt’s house together but after C.A.’s
brother died, C.A. visited only once or twice.


                                          7
happened to C.A., it could have happened to other children. She contacted A.P.’s

mother through Facebook, which led to A.P.’s outcry to his mother.10

      A.P.’s mother testified about A.P.’s outcry as follows,

      He said he -- I was sitting on the -- I was playing with -- with the -- my
      brothers, Wii in the living room. He came to the living room, he came
      from the room from the hallway and he told me to come with him. He
      grabbed me by my hand, we went into my room. I was standing. And
      then he pull his pants and he start rubbing his private part into my butt
      cheeks.

She asked A.P. what he wanted to do, and he told her, “Mom, I want him in jail.”

      Trista Burden, the forensic interviewer, testified about how children disclose

sexual abuse,11 explained the concept of “grooming,” both done individually, to

establish rapport with the child and maximize access to the child, and done with the

child’s environment, to prevent disclosure,12 and she explained about how sensory and



      10
        A.P. testified that he had not previously told anyone because when he realized
that what had happened was bad, and how bad it was, he did not know how to tell
anyone, and he did not want to jeopardize his mother’s relationship with Jose.
      11
        Burden explained to the jury that disclosure involved a series of stages that a
child could move back and forth through: denial, tentative, active, recantation, and
reaffirmation. She described the tentative phase as the child “talking about it a little
bit because [he] want[s] to see how people are going to react,” and the active phase as
“I’m ready to talk about it.” Burden said that some people stay in the denial phase
forever, while sometimes an accidental disclosure may occur, meaning, “I am not
choosing to talk about this, but something happened and it came out,” such as
through a note in a diary or a text seen by a parent or through confiding in a best
friend.
      12
        Burden said that individual grooming could be special treatment, gift-giving,
secrets, “[a]nything kind of special that make[s] that child feel different.”

                                           8
peripheral details can help establish whether a child is being truthful.13 She conducted

both forensic interviews.

      Arlington Police Detective Mary Tenorio testified that after A.P. and C.A.’s

forensic interviews, on June 19, 2017, and July 3, 2017, respectively, she made

referrals for them to have sexual assault exams.

      Valerie Penic, the sexual assault nurse examiner (SANE) who conducted A.P.’s

sexual assault exam at Cook Children’s hospital on June 23, 2017, testified that while

she had performed over 200 sexual assault exams on children, only a dozen of those

had been on boys because “[t]hey don’t typically report.” She attributed the lack of

reporting to the way boys are raised “to be strong, masculine,” and not to outwardly

show pain or sadness. A.P. told her:

              It was nighttime. My mom and dad weren’t there. They went out
      to eat like a date night.

             The guy that did it is my stepdad’s brother. He came to babysit
      my brother and I. And there was another family member, but he was a
      kid too.



Environmental grooming, on the other hand, “is where a perpetrator is very
purposely, with that trust dynamic, building that trust within the family, allowing for
the perpetrator to be maybe a caregiver that’s alone with the child.”
      13
        Burden explained that sensory details pertained to the five senses: what the
child saw during the abuse, heard while the abuse was taking place, and smelled and
tasted during the incident. She described peripheral details as the surroundings—
what the child was wearing, where the abuse occurred, whether the lights were on and
off, and so on.


                                           9
            We were playing video games. He suddenly grabbed me by the
      arm and took me to the room. The door was open. He set me on the
      bed. The light was off. I was laying sideways. He pulled down my pants,
      and then he pulled down -- pulled his down too. Then he rubbed his
      penis on my butt cheeks. Then he got up and went back to the living
      room. I stood there a while because I didn’t know what to do. That’s all
      I remember.

      Cindy Romaguera, a SANE at John Peter Smith hospital, testified that of the

over 250 sexual assault exams that she had performed at JPS, only 30 had been on

male patients, and that Cook Children’s hospital conducted the exams on adolescents.

On July 7, 2017, she performed C.A.’s sexual assault exam at JPS, and he told her,

             It was a summer day. I was at my cousin’s house. I decided to stay
      the night. I started to feel something weird. I thought I was having a wet
      dream. I woke up and felt pain in my rectum area, his penis was inside of
      me. I was on the floor between the beds. I heard him breathing. It went
      on for ten minutes until his ejaculation. I was afraid. He put my clothes
      back in place. I turned over and saw him. He was facing the other way
      getting into the other bed. I went to the restroom and wiped and saw
      semen on the paper, and it smelled like it. I went to sleep in the living
      room.

Romaguera said that it was very difficult for C.A. to talk with her about what had

happened and that he told her that Delangelhernandez, who he said was 29 years old

at the time of the incident, had done this seven years before.

      Jose, Delangelhernandez’s older brother, testified that he did not know when

Delangelhernandez could have abused A.P., but he acknowledged that he did not

know what happened when he and A.P.’s mother were not at home. He said that

A.P. had never behaved unusually around Delangelhernandez or indicated that

anything bad had happened.

                                           10
      Delangelhernandez testified that he was married and had two stepsons and one

biological son with his wife. He confirmed that he had bought a Wii for his brother’s

child and stepchildren for Christmas and had babysat them but denied having sexually

abused A.P. or C.A. When asked on cross-examination, “So, your testimony today is

that they told the truth about everything other than the sexual abuse that happened to

them,” he replied, “Yes.”

B. The Indictment and the Jury Charge

      The indictment alleged that Delangelhernandez,

      on or about the 4th day of August 2008 through on or about the 3rd day
      of August 2013, during a period of time that is 30 days or more in
      duration, did intentionally or knowingly commit two or more acts of
      sexual abuse, to wit: aggravated sexual assault of a child under 14,
      against [C.A.] by causing the sexual organ of the defendant to contact
      the anus of [C.A.], and/or indecency with a child against [A.P.] by
      engaging in sexual contact with [A.P.] by touching any part of the body
      of [A.P.] with any part of the genitals of the defendant with the intent to
      arouse or gratify the sexual desire of any person, and at the time of the
      commission of each of these acts of sexual abuse the defendant was 17
      years of age or older and [C.A.] was younger than 14 years of age, and
      [A.P.] was younger than 14 years of age, and neither were the spouse of
      the defendant.

      In contrast to the indictment, the abstract portion of the jury charge did not

contain the complained-of “intentionally or knowingly,” stating,

      A person commits the offense of “continuous sexual abuse of a young
      child or children” if, during a period that is 30 or more days in duration,
      the person commits two or more acts of sexual abuse, and at the time of
      the commission of each of the acts of sexual abuse, the actor is 17 years
      of age or older and the victim is a child younger than 14 years of age.



                                          11
The abstract portion of the charge defined “act of sexual abuse” to include both

aggravated sexual assault and indecency with a child, if the indecency offense was

“committed in a manner other than by touching, including touching through clothing,

the breast of a child.”

       The abstract portion of the charge defined the offense of “aggravated sexual

assault” to include, among other things, “intentionally or knowingly caus[ing] the

penetration of the anus . . . of a child by any means” when the child is younger than

14 years of age. And it defined the offense of indecency with a child as “engag[ing] in

sexual contact with the child or caus[ing] the child to engage in sexual contact; or with

intent to arouse or gratify the sexual desire of any person, expos[ing] the person’s

anus or any part of the person’s genitals, knowing the child is present; or caus[ing] the

child to expose the child’s anus or any part of the child’s genitals” when the child is

younger than 17 years of age. It defined “sexual contact” as “any touching by a

person, including touching through clothing, of the anus, breast, or any part of the

genitals of a child with intent to arouse or gratify the sexual desire of any person.”

       The abstract portion of the jury charge also defined the intentional14 and

knowing15 mental states before instructing the jury that it did not have to agree



       14
         The abstract portion of the charge stated, “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.”


                                            12
unanimously with respect to the offense of continuous sexual abuse as to which

specific acts of sexual abuse were committed but rather had to be unanimous that two

or more acts of sexual abuse “as that term has been previously defined and as alleged

in the indictment” were committed.

      The application portion of the charge mirrored the indictment, stating,

             Now, if you find from the evidence beyond a reasonable doubt
      that the defendant . . . on or about the 4th day of August 2008 through
      on or about the 3rd day of August 2013 . . . did during a period of time
      that is 30 days or more in duration, did intentionally or knowingly
      commit two or more acts of sexual abuse, to wit: aggravated sexual
      assault of a child under 14, against [C.A.] by causing the sexual organ of
      the defendant to contact the anus of [C.A.], and/or indecency with a
      child against [A.P.] by engaging in sexual contact with [A.P.] by touching
      any part of the body of [A.P.] with any part of the genitals of the
      defendant with the intent to arouse or gratify the sexual desire of any
      person, and at the time of the commission of each of these acts of sexual
      abuse the defendant was 17 years of age or older and [C.A.] was younger
      than 14 years of age, and [A.P.] was younger than 14 years of age, and
      neither were the spouse of the defendant, then you will find the
      defendant guilty of the offense of continuous sexual abuse of a young
      child as charged in Count One of the indictment, and you will not
      consider Counts Three through Five of the indictment.

And the verdict form, upon which the jury found Delangelhernandez guilty of the

continuous sexual abuse offense, stated, “We, the jury, find the defendant . . . guilty of




      15
        The abstract portion of the charge stated, “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. A person acts knowingly, or with knowledge, with respect to a result of his
conduct when he is aware that his conduct is reasonably certain to cause the result.”


                                           13
the offense of continuous sexual abuse of a young child as charged in Count One of

the indictment.”

      The jury charge also instructed the jury that unless it found each element of an

offense beyond a reasonable doubt, it was required to acquit Delangelhernandez and

reminded the jury about Delangelhernandez’s presumption of innocence.

C. Arguments and Statements of Counsel to the Jury

      During voir dire, the prosecutor defined intentionally and knowingly for the

jury and then explained that “the continuous charge” was “kind of an umbrella” that

held underneath it individual charges of aggravated sexual assault and indecency that

the State had to prove took place outside of 30 days. The prosecutor also explained

that there was not a limit on the number of victims “depending on the number of

instances” of sexual misconduct alleged. The prosecutor then again reiterated that

“continuous is kind of an umbrella” covering specific instances. The prosecutor

informed the jury,

      Okay. So here’s the difference in the elements of the two charges that
      we’ve talked about underneath continuous sexual abuse of a child.

      At first we have aggravated sexual assault of a child. And what that is, is
      this defendant, in Tarrant County, Texas, on or about a certain date, all
      that stuff, intentionally or knowingly penetrated or contacted the sexual
      organ or anus of a child under 14 with any part of the defendant’s body.
      Does that make sense to everybody?

After explaining the distinction between penetration and contact, the prosecutor

continued,


                                          14
      Okay. And then indecency, it’s the same thing, defendant, on or about a
      certain date, in Tarrant County, Texas, contact a child – contact with a
      child and with their genitals or they contact the child’s genitals with
      intent to arouse or gratify the sexual desire of anyone, okay.

The prosecutor discussed the “intent to arouse or gratify,” stating,

      Intent to arouse or gratify, this is our last element in the indecency
      charges. Basically, it just has to -- we have to prove that either the
      defendant did it to arouse himself or gratify himself, or to arouse his
      victim and gratify his victim. And you might ask, well, how can we do
      that? Well, you know, there’s plenty of ways to prove intent. Intent can
      be inferred from any type of action that we might prove to you through
      testimony, through any other type of evidence. It could be from
      conduct, it could be from remarks made when the alleged conduct was
      going down, or it could be all of the surrounding circumstances, okay.

      The prosecutor told the jury during his opening statement that the evidence

would show that Delangelhernandez had groomed the victims before he sexually

abused them at least 30 days apart. During closing arguments, the prosecutor argued

that the offenses were 30 days apart, even if they happened in the same year, because

C.A. said it happened to him in the summer and A.P. said that it happened to him in

February, and that there were plenty of sensory details to support the boys’ testimony.

      Delangelhernandez argued that it was the boys’ word against his and that his

brother said that he never saw any changes in A.P.’s behavior. In rebuttal, the

prosecutor argued that the boys were more credible, particularly when

Delangelhernandez never said why the boys might make up their story.




                                           15
D. Other Relevant Information

       Courts have considered items such as a jury’s rejection of a charged count and

whether the jury sent clarification requests during their deliberations. See Flores v. State,

513 S.W.3d 146, 161 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). The clerk’s

record does not reflect that the jury sent out any clarification requests. However, the

record does reflect that the jury deliberated only 29 minutes, from 3:09 p.m. to 3:38

p.m., before issuing the guilty verdict.

E. Analysis

       Looking at the charge as a whole, the abstract portion of the charge accurately

stated the substantive law, thus informing the jury of what the State had and did not

have to prove, and the record reflects that from voir dire onward, the jury was

informed that continuous sexual abuse of a child was an “umbrella” under which it

had to find two predicate offenses—aggravated sexual assault of a child and indecency

with a child—separated by at least 30 days. And except for the occurrence of the

alleged offenses, Delangelhernandez did not dispute any of the facts. Accordingly, the

contested issue at trial was witness credibility; C.A. and A.P.’s testimony contained all

of the elements of continuous sexual abuse of young children and the predicate

offenses, and—based on the verdict and the extremely brief deliberation period—the

jury found their testimony more credible than Delangelhernandez’s. See Bazanes v.

State, 310 S.W.3d 32, 37 (Tex. App.—Fort Worth Feb. 18, 2010, pet. ref’d) (holding

charge error not egregiously harmful when, among other things, primary contested

                                             16
issue at trial was witness credibility). That is, the jury, as the sole judge of the

witnesses’ credibility and the weight to be given their testimony, could have inferred

that Delangelhernandez had the intent to arouse or gratify his sexual desire when he

positioned his penis between A.P.’s butt cheeks and that he intentionally or knowingly

caused his penis to contact C.A.’s anus. See id. Based on our review of the charge, the

evidence, the arguments of counsel, and other relevant information, we conclude that

Delangelhernandez was not egregiously harmed and overrule his two points.

                                  III. Conclusion

      Having overruled Delangelhernandez’s two points, we affirm the trial court’s

judgment.

                                                     /s/ Bonnie Sudderth
                                                     Bonnie Sudderth
                                                     Chief Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: January 9, 2020




                                          17
