                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-16-00233-CR

THOMAS JOHNNY WILKINS,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                          From the 66th District Court
                              Hill County, Texas
                             Trial Court No. 39,216


                         MEMORANDUM OPINION


      Thomas Johnny Wilkins appeals from convictions for two counts of aggravated

sexual assault of a child and one count of indecency with a child, which were enhanced

by a prior conviction. TEX. PEN. CODE ANN. §§ 22.021, 21.11 (West 2011). Wilkins

complains that: (1) the trial court abused its discretion by allowing the admission of

evidence regarding his prior conviction; (2) the trial court abused its discretion by

admitting evidence regarding the circumstances surrounding the commission of the
underlying offense of the prior conviction; (3) the evidence was factually insufficient; (4)

the jury charge was erroneous regarding culpable mental states; (5) the trial court erred

by assessing court costs because Wilkins is indigent; and (6) the statutes authorizing the

imposition of court costs are unconstitutional as applied. Because we find no reversible

error, we affirm the judgments of the trial court.

                                 ADMISSION OF EVIDENCE

        In his first and second issues, Wilkins complains that the trial court abused its

discretion by allowing the admission of evidence regarding a prior extraneous offense for

which he was convicted against a victim other than the victim in this proceeding. In his

first issue, Wilkins complains that the trial court should not have allowed testimony

regarding the fact that he was convicted of the prior extraneous offense because its

probative value was substantially outweighed by the danger of unfair prejudice pursuant

to Rule 403 of the Rules of Evidence. In his second issue, Wilkins complains that the trial

court erred by allowing the victim of the prior extraneous offense to testify regarding the

circumstances surrounding that offense pursuant to Rule 403.

        The trial court conducted a hearing prior to swearing in the jury pursuant to article

38.37 of the Code of Criminal Procedure in order to determine the admissibility of the

testimony of Wilkins's former stepdaughter, the victim in a prior extraneous offense for

which Wilkins was convicted and required to register as a sex offender. In making his

introductory remarks to the trial court, counsel for Wilkins stated:


Wilkins v. State                                                                       Page 2
        [W]e would argue that if, in fact—if the State of Texas could bring in the
        priors, not only would it be a constitutional violation, but more than
        anything else, it would be unduly prejudiced [sic], and it would place my
        client in great jeopardy thereby violating not only the national
        constitution—U.S. Constitution but also the State constitution because he
        would literally be a witness against himself, Your Honor. So, therefore,
        what we're asking the Court to consider is not allowing the extraneous of a
        prior either bad act or conviction in reference to my client in the State's case
        in chief.

        The trial court took Wilkins's objections under advisement until after the State's

presentation of evidence. After hearing evidence and deferring a ruling on outcry witness

testimony, the victim was called to testify pursuant to article 38.37. After her testimony

was concluded, the trial court ruled that the victim's testimony regarding the

circumstances surrounding the prior extraneous offense was admissible by stating:

        The testimony of [the victim] I find admissible on the—what occurred to
        her or how the sexual abuse occurred to her is admissible. I find that the—
        it's possible that—sufficient under her testimony that a jury could find
        beyond a reasonable doubt that the offense was committed also, and relying
        on the representation of the State of the similarity of the two offenses, this
        one and the previous one, which allegedly involves administration of some
        type of a depressant to the alleged victims is similar enough to show
        similarity, and the age, of course, and other matters sufficient to show
        similarity of the commission of the offense and is further admissible for the
        purpose of showing character of the alleged perpetrator. And, therefore,
        the defendant's objections to that testimony is overruled. I do have a
        question as to what—and I've already ruled that she can certainly testify
        what happened to her provided the State is going to lay the foundation with
        the previous—with a prior witness that this similar—was committed in a
        similar manner, but I have a question as to whether or not that this witness
        can testify or there would be—there could be other testimony or evidence
        submitted by the State to show that there was a conviction in the case. I'm
        not sure that that would be admissible.

        The State indicated that it would provide the trial court with case law to support
Wilkins v. State                                                                           Page 3
the admissibility of the prior conviction but agreed that the prior conviction would not

be mentioned in the State's opening statement if the case law was not provided. Wilkins

then made a further objection to the trial court's ruling on the admission of the victim's

testimony as follows:

        Your Honor, we believe that this would be a violation of the U.S.
        Constitution and also the State constitution because it would literally place
        my client on the basis that he would have to be a witness against himself.
        So, again, Your Honor, for the record, we object to the Court's ruling.

        The trial court overruled Wilkins's objection and took a break. Once back on the

record, the trial court informed counsel for Wilkins:

        [The State] couldn't readily find his case like he had hoped to do, although
        he's still convinced he can do it. But anyway, what I'm telling him is that
        he can't tell the jury in opening statement that the defendant was convicted.
        Although I said the testimony from the victim herself is admissible, he can't
        tell the jury in opening statement that he has been convicted, and he's not
        going to be able to introduce evidence that the defendant was convicted
        before the jury until he comes up with this case which he says is going to
        back him up. If it does, I'll allow it. If it doesn't, I won't.

        Counsel for Wilkins responded as follows:

        Your Honor, for the record, during our small break—and I appreciate the
        Court giving us that—the defense at this point in time would move to
        stipulate as to the prior conviction.

        Counsel for Wilkins then stated that because of the stipulation of the prior

conviction, the circumstances of the underlying offense would therefore be inadmissible.

The trial court disagreed and informed Wilkins that the evidence would still be allowed.

The trial court gave Wilkins the opportunity to withdraw his stipulation, which Wilkins


Wilkins v. State                                                                        Page 4
declined.     The trial court then informed Wilkins and the State that based on his

stipulation, the State could refer to the prior conviction in its opening statement.

        The State argues that Wilkins did not preserve an objection pursuant to Rule 403.

Wilkins contends that his one phrase "unduly prejudiced" was sufficient to apprise the

trial court of his objection but does not refer to anywhere else in the record where this

objection was lodged to the trial court. In order to preserve error, the record must show

that the complaint was made that "stated the grounds for the ruling that the complaining

party sought from the trial court with sufficient specificity to make the trial court aware

of the complaint, unless the specific grounds were apparent from the context;" and that

the trial court "ruled on the request, objection, or motion, either expressly or implicitly."

TEX. R. APP. P. 33.1 (a)(1)(A) & (a)(2)(A).

        It is apparent from the record that the objection before the trial court related to the

admissibility of the testimony of the victim relating to his conviction and the

circumstances of the prior extraneous offense pursuant to article 38.37. There is nothing

to indicate that the trial court considered Rule 403 during the hearing and Wilkins did

not object to the trial court's failure to rule on that objection if that objection was, in fact,

actually made. Because of this, Wilkins's complaints regarding Rule 403 were not

properly preserved, and were therefore waived. We overrule issues one and two.

                                    FACTUAL SUFFICIENCY

        In his third issue, Wilkins argues that, although the evidence was legally sufficient,


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the evidence was factually insufficient to support his convictions. The Texas Court of

Criminal Appeals, in Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010),

abandoned the factual-sufficiency standard in criminal cases. Brooks v. State, 323 S.W.3d

893, 912 (Tex. Crim. App. 2010). This Court has repeatedly previously considered and

rejected the arguments presented by Wilkins. See Thomas v. State, No. 10-17-00049-CR,

2017 Tex. App. LEXIS 10981 at *5-6 (Tex. App.—Waco Nov. 22, 2017, no pet. h.) (mem.

op., not designated for publication); Burns v. State, No. 10-16-00357-CR, 2017 Tex. App.

LEXIS 5946 at *8 (Tex. App.—Waco June 28, 2017, pet. ref'd) (mem. op., not designated

for publication); Garcia v. State, No. 10-16-00045-CR, 2017 Tex. App. LEXIS 195 at *6 (Tex.

App.—Waco Jan. 11, 2017, pet. ref'd) (mem. op., not designated for publication). We are

not persuaded to consider this argument in this proceeding. We overrule issue three.

                                   JURY CHARGE ERROR

        In his fourth issue, Wilkins complains that the trial court erred by including the

incorrect definition of the culpable mental state of the result of conduct in the abstract

portion of the jury charge rather than the correct definition of nature of conduct.

Additionally, Wilkins complains that the jury charge erroneously did not restrict the

jury's consideration in the indecency charge to intentional conduct.

        We review alleged jury charge error in two steps. See, e.g., Cortez v. State, 469

S.W.3d 593, 598 (Tex. Crim. App. 2015). We first determine whether error exists in the

charge. Id. Second, if there is error, we review the record to determine whether the error


Wilkins v. State                                                                     Page 6
caused sufficient harm to warrant reversal. Id.; Ngo v. State, 175 S.W.3d 738, 743-44 (Tex.

Crim. App. 2005). When, as in this case, the error was not preserved by objection, the

error will not result in reversal of the conviction without a showing of egregious harm.

Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015); accord Ngo, 175 S.W.3d at 743-

44. "Egregious harm" is a difficult standard to meet and requires a showing that the

defendant was deprived of a fair and impartial trial. Nava v. State, 415 S.W.3d 289, 298

(Tex. Crim. App. 2013). The record must disclose "actual rather than theoretical harm,"

and the error must have affected the very basis of the case, deprived the defendant of a

valuable right, or vitally affected a defensive theory. Id.

        Under article 36.14 of the Code of Criminal Procedure, the trial court shall deliver

to the jury "a written charge distinctly setting forth the law applicable to the case[.]" TEX.

CODE CRIM. PROC. ANN. art. 36.14 (West 2007); Taylor v. State, 332 S.W.3d 483, 486 (Tex.

Crim. App. 2011). Each statutory definition that affects the meaning of an element of the

offense must be communicated to the jury. Villarreal v. State, 286 S.W.3d 321, 329 (Tex.

Crim. App. 2009); Arline v. State, 721 S.W.2d 348, 352 n.4 (Tex. Crim. App. 1986).

        Section 6.03 of the Texas Penal Code delineates three "conduct elements" that may

be involved in an offense: "(1) the nature of the conduct; (2) the result of the conduct; and

(3) the circumstances surrounding the conduct." McQueen v. State, 781 S.W.2d 600, 603

(Tex. Crim. App. 1989); TEX. PENAL CODE ANN. §6.03 (West 2011).               The language

regarding culpable mental states in a jury charge must be tailored to the conduct elements


Wilkins v. State                                                                        Page 7
of the charged offense. Price v. State, 457 S.W.3d 437, 441 (Tex. Crim. App. 2015). "A trial

court errs when it fails to limit the language in regard to the applicable culpable mental

states to the appropriate conduct element." Id.

          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. Reed v. State, 421 S.W.3d 24,

28-29 (Tex. App.—Waco 2013, pet. ref'd). The jury charge erroneously included only

definitions of the result of his conduct regarding culpable mental states in the abstract

portion of the jury charge, and did not include the definitions of the nature of his conduct.

Further, the jury charge was also erroneous in that it did not limit the applicable mental

state relating to the indecency charge to "intentional" conduct.

          Because the jury charge was erroneous, we must determine whether Wilkins was

egregiously harmed by the error. In assessing the degree of harm caused by error in the

jury charge, we look at "the entire jury charge, the state of the evidence (including the

contested issues and the weight of probative evidence), the arguments of counsel, and

any other relevant information revealed by the record of the trial as a whole." Nava, 415

S.W.3d at 298; accord Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on

reh'g).

          The application portion of the jury charge, including that the offense must have

been intentionally or knowingly committed as to the aggravated sexual assault counts,


Wilkins v. State                                                                       Page 8
and intentionally committed as to the indecency count, was correctly stated as to each

offense, and Wilkins does not contend otherwise. Because of this, the error in the charge

does not weigh heavily in favor of a finding of egregious harm. Wilkins concedes that

there is nothing in the arguments of counsel or anything else in the record that weighs in

favor of a finding of egregious harm. In addition, the state of the evidence showed that

this was not a case where Wilkins's intent or knowledge was a contested issue at trial. See

Reed v. State, 421 S.W.3d 24, 30 (Tex. App.—Waco 2013, pet. ref'd) (concluding appellant

not egregiously harmed when focus at trial was on child victim's credibility and not

whether he lacked the requisite culpable mental state to commit the offense); Belmares v.

State, No. 03-11-00121-CR, 2011 Tex. App. LEXIS 9273, 2011 WL 5865236, at *3 (Tex.

App.—Austin Nov. 23, 2011, pet. ref'd) (mem. op., not designated for publication) (no

egregious harm because defense was that defendant denied the incident occurred and

child's outcry was fabricated).

        Based on our review of the record, we cannot conclude the alleged jury charge

error affected the very basis of the case or a defensive theory at trial. Nor did the alleged

error deprive Wilkins of a valuable right or make a case for conviction significantly more

persuasive. Reed, 421 S.W.3d at 30. Accordingly, we overrule Wilkins's fourth issue.

                                        COURT COSTS

        In his fifth and sixth issues, Wilkins asserts that the trial court erred in assessing

court costs against him. In his fifth issue, Wilkins argues that he should not have to pay


Wilkins v. State                                                                        Page 9
court costs at all because he is indigent. In his sixth issue, Wilkins argues that the statutes

authorizing the assessment of court costs against indigent criminal defendants are

unconstitutional as applied to him and violate his right to equal protection because court

costs are not assessed against indigent civil parties.

        This Court has recently overruled substantially-similar arguments pertaining to

the imposition of court costs for indigent criminal defendants. See, e.g., Martinez v. State,

507 S.W.3d. 914, 916-18 (Tex. App.—Waco 2016, no pet.). In light of our decision in

Martinez, we are not persuaded by Wilkins's arguments regarding court costs. See id.

Accordingly, we overrule Wilkins's fifth and sixth issues.

                                        CONCLUSION

        Having found no reversible error, we affirm the judgments of the trial court.




                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed February 28, 2018
Do not publish
[CRPM]




Wilkins v. State                                                                        Page 10
