      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-04-00691-CR



                                     Ezra Pleasant, Appellant

                                                   v.

                                   The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
          NO. 3020220, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted Ezra Pleasant of aggravated sexual assault of a child, indecency with

a child by contact, and indecency with a child by exposure.              See Tex. Pen. Code Ann.

§§ 22.021(a)(1)(B), 21.11(a)(1), (2) (West 2003). The district court imposed sentence for each

conviction. Pleasant raises three points of error on appeal. First, he complains of the district court’s

submission of an instruction that “sexual contact” could include touching through clothing. Second,

he complains of the court’s failure to submit an instruction under rule of evidence 201(g) regarding

its taking judicial notice of the date the indictment was presented. Third, Pleasant contends that the

judgment misstates the sentence the district court actually imposed for his conviction of indecency

with a child by exposure. We modify the judgment to reflect that the sentence the district court

imposed for Pleasant’s indecency with a child by exposure conviction was for ten years, not fifteen,

but otherwise overrule Pleasant’s points of error and affirm the judgment as modified.
                                          BACKGROUND

               On D.P’s twenty-first birthday, December 21, 2001, she divulged to her mother that

her father, Ezra Pleasant, had sexually molested her over several years beginning in 1991, when she

was approximately ten years old. Ezra Pleasant was subsequently indicted for aggravated sexual

assault of a child, indecency with a child by contact, and indecency with a child by exposure. The

first count, aggravated sexual assault of a child, alleged in relevant part that Pleasant had caused the

penetration of D.P.’s female sex organ with his finger and caused her sexual organ to “contact” his

sexual organ while she was younger than 14 years of age.                 See Tex. Pen. Code Ann.

§ 22.021(a)(1)(B). The second count, indecency with a child by contact, alleged that Pleasant had

engaged in “sexual contact” by touching D.P.’s breasts and genitals, and by causing D.P. to touch

Pleasant’s genitals, while she was less than 17 years of age. Id. § 21.11(a)(1). The third count,

indecency with a child by exposure, alleged that Pleasant had exposed his genitals to D.P. while she

was less than 17 years of age. Id. § 21.11(a)(2).

               At trial, the jury heard D.P.’s testimony describing episodes in which Pleasant groped

and fondled her breasts, rubbed his penis against her vagina through clothing, made her touch his

penis through clothing with her hand, penetrated her vagina with his finger, and exposed his penis

and rubbed it on her bare buttocks and legs. She stated the incidents of sexual abuse occurred every

time she was alone with Pleasant until she was approximately thirteen years old.

               At the close of evidence, the State asked the district court to take judicial notice that

the indictment had been presented on March 20, 2002. Because D.P. was uncertain regarding the

exact dates on which she was molested, the State had attempted to prove the date of the offenses by

demonstrating that they had occurred within the statute of limitations, i.e., before the indictment was

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presented and within ten years of D.P.’s eighteenth birthday. See Tex. Code Crim. Proc. Ann. art.

12.01(5) (West 2005). The State’s request for judicial notice of the indictment presentment date was

part of that proof. Pleasant did not object, and the district court took judicial notice of that fact. The

district court subsequently instructed the jury that the State was not required to prove the exact date

of the offense but could prove it occurred before the indictment was presented and within ten years

of D.P.’s eighteenth birthday, and that “the date of the presentment of the indictment in this case was

March 20, 2002.” Pleasant did not object to this instruction.

                The district court also instructed the jury that touching through clothing could

constitute “sexual contact.” Pleasant objected to this instruction, and the district court overruled the

objection.

                During closing argument, the State argued that both the penetration of D.P.’s vagina

with Pleasant’s finger and the contact of his penis with her vagina through clothing constituted

aggravated sexual assault. The State asserted that Pleasant’s touching D.P.’s breasts and genitals in

a sexual manner, and his having her touch his penis with her hand through his underwear, constituted

indecency with a child by contact. Additionally, the State argued that Pleasant’s exposing his penis

and rubbing it against D.P.’s buttocks and legs constituted indecency with a child by exposure.

                The jury found Pleasant guilty of all three counts alleged in the indictment. The

district court sentenced Pleasant to twenty years’ confinement for aggravated sexual assault and

twenty years’ confinement for indecency with a child by contact. The judgment also states that

Pleasant received a fifteen-year sentence for indecency with a child by exposure, but the record

otherwise reflects that the district court actually imposed a ten-year sentence. This appeal ensued.




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                                           DISCUSSION

               On appeal, Pleasant raises three points of error. In his first point of error, Pleasant

claims that the district court erred in overruling his objection to the court’s charge regarding sexual

contact through clothing. In his second point of error, Pleasant maintains the district court erred in

failing to give a permissive instruction regarding judicial notice of the indictment presentment date.

Finally, in his third point of error, Pleasant asserts that the judgment misstates his sentence for

indecency with a child by exposure as fifteen years, rather than ten.


Jury instruction regarding sexual contact

               The purpose of a jury charge is to instruct the jury on the applicable law and must

include an accurate statement of the law. See Tex. Code Crim. Proc. art. 36.14; Abdnor v. State, 871

S.W.2d 726, 731 (Tex. Crim. App. 1994). Moreover, the district court must apply the law to the

facts adduced at trial. Gray v. State, 152 S.W.3d 125, 127 (Tex. Crim. App. 2004); Abdnor, 871

S.W.2d at 731 (not function of charge merely to avoid misleading or confusing jury, function is to

prevent confusion) (quoting Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977)). The

district court has broad discretion in submitting proper definitions and explanatory phrases to the

jury. Roise v. State, 7 S.W.3d 225, 242 (Tex. App.—Austin 1999, pet. ref’d), cert. denied, 531 U.S.

895 (2000). While jurors are presumed to know and apply the common and ordinary meanings of

words, the charge must include the definition of words or terms that do not have common meanings

the jury can be presumed to know and apply. Cuevas v. State, 742 S.W.2d 331, 346 (Tex. Crim.

App. 1987); Murphy v. State, 44 S.W.3d 656, 662 (Tex. App.—Austin 2001, no. pet.). This applies

to terms which have a known and established legal meaning, or which have acquired a peculiar and


                                                  4
appropriate meaning in the law, such as a well-known common-law meaning. Medford v. State, 13

S.W.3d 769, 772 (Tex. Crim. App. 2000).

               The district court instructed the jury:


               “Sexual contact” means any touching of the anus, breast, or any part of the
       genitals of another person with intent to arouse or gratify the sexual desire of any
       person. Sexual contact or touching may be through clothing and does not require
       skin-to-skin contact but does include a perception by a sense of feeling.


Pleasant objected that the last sentence of this instruction was erroneous and amounted to a comment

on the weight of the evidence.

               Pleasant emphasizes that at the time of the alleged offenses, the penal code did not

explicitly define sexual contact to include touching through clothing. Prior to 2001, section 21.11

contained no definition of sexual contact. “Sexual contact” was defined in penal code section

21.01(2) as “any touching of the anus, breast, or an part of the genitals of another person with intent

to arouse or gratify the sexual desire of any person.” Act of May 29, 1993, 73d Leg., R.S., ch. 900,

§ 1.01, sec. 21.01(2), 1993 Tex. Gen. Laws 3586, 3615 (amended 2001) (current version at Tex. Pen.

Code Ann. § 21.01(2) (West 2003)). Pleasant points out that the legislature in 2001 added a

definition of “sexual contact” to section 21.11 that explicitly included touching through clothing:


       In this section, “sexual contact” means the following acts, if committed with the
       intent to arouse or gratify the sexual desire of any person:

       (1) any touching by a person, including touching through clothing, of the anus,
           breast, or any part of the genitals of a child; or

       (2) any touching of any part of the body of a child, including touching through
           clothing, with the anus, breast or any part of the genitals of a person.

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See Act of May 23, 2001, 77th Leg., R.S., ch. 739, § 2, 2001 Tex. Gen. Laws 1463 (Tex. Pen. Code

Ann. § 21.11(c)(2) (West 2003)). Pleasant contends that in the absence of an explicit statutory

directive at the time of his offenses stating that sexual conduct could include touching through

clothing, the district court’s instruction inaccurately stated the law and amounted to a comment on

the evidence. He also suggests that the legislature’s subsequent amendment of the provision to add

explicit language further demonstrates that, under prior law, sexual contact did not include touching

through clothing. We disagree.

               The word “touching” has developed a specific meaning in the context of “sexual

contact.” Even before the 2001 amendments, section 21.11 had been repeatedly construed to allow

the State to prove sexual contact with evidence of non-skin-to-skin touching, including touching

through clothing. See Resnick v. State, 574 S.W.2d 558, 559-60 (Tex. Crim. App. 1978) (mere

interposition of layer of fabric between person’s hand and genitals of another did not prevent

occurrence of sexual contact because touching will still engender sense of feeling perceived by

person touched); Steinbach v. State, 979 S.W.2d 836, 839-40 (Tex. App.—Austin, 1998, pet. ref’d)

(absence of flesh upon flesh contact did not prevent finding that evidence was sufficient to support

conviction of prostitution); Cruz v. State, 742 S.W.2d 545, 548 (Tex. App.—Austin 1988, no pet.)

(fact there was no evidence of flesh-to-flesh contact did not prevent finding that evidence was

sufficient to support conviction of indecency with child); Guia v. State, 723 S.W.2d 763, 766 (Tex.

App.—Dallas 1986, pet. ref’d) (if layer of fabric did not prevent occurrence of sexual contact for

public lewdness in Resnick, it does not prevent occurrence of sexual contact for offense of indecency




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with a child). In light of these authorities, we cannot conclude that the district court’s instruction

was an inaccurate statement of the controlling law at the time of Pleasant’s offenses.

               Although the legislature later chose to add a definition of sexual contact that explicitly

included touching through clothing, we are to presume that the legislature was aware of the

background law when it made that change. See Tex. Gov’t Code Ann. § 311.023 (West 2005);

Grunsfeld v. State, 843 S.W.2d 521, 523 (Tex. Crim. App. 1992) (when examining amendments to

existing legislation, presume that legislature was aware of case law affecting or relating to statute).

And, consistent with that presumption, the legislative history of the amendment indicates that the

change was intended to be non-substantive and solely for clarification. See Senate Comm. on Crim.

Justice, Bill Analysis, Tex. S.B. 92, 77th Leg., R.S. (2001). In any event, we do not infer the intent

and contemporary meaning of former section 21.11 from the actions of a subsequent legislature. See

Tex. Gov’t Code Ann. § 311.023; Boniface v. Boniface, 656 S.W.2d 131, 137 (Tex. App.—Austin

1983, writ. denied).

               The district court did not err in defining “sexual contact” and “touching” in its charge.

Accordingly, we overrule Pleasant’s first point of error.


Jury instruction regarding indictment presentment date

               In his second point of error, Pleasant argues that the district court erred in failing to

give a permissive instruction regarding its judicial notice of the indictment presentment date. See

Tex. R. Evid. 201(g) (in criminal cases, the court shall instruct the jury that it may, but is not

required to, accept as conclusive any fact judicially noticed). The district court instructed the jury

as follows:

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        You are further charged as a part of the law in this case that the state is not required
        to prove the exact date alleged in the indictment but may prove the offense, if any,
        to have been committed at any time prior to the presentment of the indictment so
        long as the indictment was returned within 10 years of the 18th birthday of the
        alleged victim. You are instructed that the date of the presentment of the indictment
        in this case was March 20, 2002.


Pleasant states he was harmed by this instruction because the court’s error had the effect of lessening

the State’s burden of proof.

                Our disposition of this issue turns on whether the date of presentment was an

“adjudicative fact” for which the district court would have been required to give a permissive

instruction under rule 201(g). See id. Adjudicative facts are relevant to the ultimate issue in dispute,

but are not themselves the subject of controversy. Watts v. State, 99 S.W.3d 604, 610 (Tex. Crim.

App. 2003). The indictment presentment date is not an adjudicative fact in this case because it is not

relevant to any issue in dispute. Pleasant did not assert a statute of limitations defense at trial, and

the charge did not condition a guilty verdict on a finding that the offense was committed before the

indictment was presented and within the limitations period.

                Further, Pleasant failed to object when the State asked the district court to take

judicial notice of the presentment date and did not object to the instruction the court gave. Thus,

even if the district court had erred in giving the instruction, we would reverse only if there was

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

We cannot conclude that any harm from the instruction, even if erroneous, would rise to that level.

                We overrule Pleasant’s second point of error.




                                                   8
Sentence for indecency with a child by exposure

               In his third point of error, Pleasant urges this Court to modify the district court’s

judgment imposing a fifteen-year sentence for indecency with a child by exposure to accurately

reflect the ten-year sentence the court imposed, as demonstrated by the record. We may correct and

reform a trial court judgment to make the judgment “congruent with the record.” See Tex. R. App.

P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); St. Julian v. State, 132

S.W.3d 512, 517 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). We modify the judgment to

show that Pleasant was sentenced to ten years on his conviction for indecency with a child by

exposure.


                                         CONCLUSION

               We modify the judgment to reflect that the district court imposed a ten-year sentence

for indecency with a child by exposure, and affirm the judgment as modified.




                                             __________________________________________

                                             Bob Pemberton, Justice

Before Justices B. A. Smith, Puryear and Pemberton

Modified and, as Modified, Affirmed

Filed: December 9, 2005

Do Not Publish




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