                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                        No. 07-15-00071-CR


                          CHANCE DOUGLAS BOLEN, APPELLANT

                                                  V.

                              THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 121st District Court
                                       Terry County, Texas
                    Trial Court No. 6663, Honorable Kelly G. Moore, Presiding

                                        October 14, 2015

                                            OPINION
                    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


       Appellant, Chance Douglas Bolen, appeals his conviction for the offense of

continuous sexual abuse of a young child,1 and sentence of life imprisonment in the

Institutional Division of the Texas Department of Criminal Justice. His sole appellate

issue contends that the trial court’s jury charge violated his right to a unanimous verdict

where the instructions referenced extraneous offenses that were not alleged in the

indictment. We will affirm the trial court’s judgment.

       1
           See TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2014).
                               Factual and Procedural Background2


        On April 25, 2014, appellant was charged by indictment with the offense of

continuous sexual abuse of a young child.                   The indictment alleged that appellant

committed this offense by intentionally or knowingly inducing S.M. “to engage in sexual

conduct to wit: masturbation.”


        Appellant was S.M.’s mother’s boyfriend. In 2008, when S.M. was around nine

or ten years old, appellant, S.M., and S.M.’s mother moved into a house together in

Brownfield. While living in Brownfield, appellant began making S.M. masturbate while

he watched as a condition to receive appellant’s permission to do various activities.

According to S.M., appellant made her masturbate on three or four occasions during

this period of time. After about a year and a half in Brownfield, the group moved to East

Texas. Appellant’s behavior continued while in East Texas. In 2012, appellant, S.M.,

and S.M.’s mother moved back to Brownfield. According to S.M., in total, appellant

demanded that she masturbate in front of him more than ten times while the group lived

in Brownfield. In addition, S.M. testified about a number of other inappropriate sexual

behaviors of appellant, including forcing S.M. to have vaginal and anal sex with him and

to expose herself while he took pictures of her.


        At the close of evidence, the trial court held its charge conference on guilt-

innocence. Appellant objected to the jury unanimity instruction. However, appellant

acknowledges in his appellate brief that this objection was “on general constitutional

grounds.” The trial court overruled appellant’s objection. After deliberating, the jury

        2
        As appellant’s sole issue relates to the jury charge, only those facts relevant to that issue will be
addressed.

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found appellant guilty of the offense of continuous sexual abuse of a young child. Upon

inquiry, the foreman of the jury confirmed that the verdict was unanimous. After hearing

punishment evidence, the jury returned a verdict sentencing appellant to life

imprisonment. The trial court entered judgment on the verdicts of the jury. It is from this

judgment that appellant appeals.


       Appellant’s sole issue on appeal is that the trial court’s jury charge violated his

right to a unanimous jury where the instructions referenced extraneous offenses that

were not alleged in the indictment.


                                   Standard of Review


       When presented with a jury charge complaint, we review the charge under

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g) (en banc).

First, we determine whether error occurred; if error did not occur, our analysis ends.

Hailey v. State, 413 S.W.3d 457, 495 (Tex. App.—Fort Worth 2012, pet. ref’d). If we

find error, then we evaluate whether such error caused sufficient harm to compel

reversal. See Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); Ngo v.

State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (en banc). The degree of harm

necessary for reversal depends on whether the error was preserved. Villarreal v. State,

453 S.W.3d 429, 433 (Tex. Crim. App. 2015). Error that was properly preserved by a

timely objection will require reversal "as long as the error is not harmless." Almanza,

686 S.W.2d at 171. But, when error is not properly preserved, the error must have

resulted in egregious harm to justify reversal. Id. Under either harm standard, the

actual degree of harm must be assessed in light of the entire jury charge, the state of


                                            3
the evidence, the arguments of counsel, and any other relevant information revealed by

the record as a whole. Id. To obtain reversal for jury-charge error, appellant must have

suffered actual harm and not merely theoretical harm. Sanchez v. State, 376 S.W.3d

767, 775 (Tex. Crim. App. 2012) (op. on reh’g).


        Appellant contends that the trial court erred in its charge to the jury because it

contained a definition of “sexual conduct” that would allow the jury to convict appellant

for sexual conduct about which testimony was admitted but that was not contained

within the indictment. Assuming, without deciding, that the jury charge in this case was

erroneous,3 we conclude that it did not harm appellant to an extent that would justify

reversal.


        The appropriate degree of harm necessary for reversal depends on whether the

error was preserved. See Villarreal, 453 S.W.3d at 433. The basic principle of error

preservation is that the complaining party must let the trial judge know what he wants

and why he thinks he is entitled to it in a manner clear enough for the judge to

understand and at a time when the trial court is in a position to do something about it.

Chase v. State, 448 S.W.3d 6, 11 (Tex. Crim. App. 2014); Bekendam v. State, 441

S.W.3d 295, 300 (Tex. Crim. App. 2014); see also TEX. R. APP. P. 33.1 (to preserve

error a timely objection must be made that states the grounds "with sufficient specificity

to make the trial court aware of the complaint, unless the specific grounds were

apparent from the context"). While the courts "are not hyper-technical in examination of


        3
          Appellant premises his contention that the trial court’s jury charge was in error on the fact that
the charge did not specifically limit the jury’s consideration of this extraneous offense evidence. However,
appellant acknowledges in his brief that he did not request a limiting instruction when the evidence was
offered or during the charge conference.

                                                     4
whether error was preserved," the point of error on appeal must comport with the

objection made at trial. Bekendam, 441 S.W.3d at 300.


      At the charge conference, appellant’s objection was as follows:


      As to paragraph five[,] you're instructed that Members of the Jury are not
      required to agree unanimously on which specific acts of sexual abuse
      were committed by the defendant.

      Again, that goes back to the very heart of the objection I made prior to
      trial, that the law itself, that my client is being tried on[,] specifically 21.02
      of the Texas Penal Code. While it may require that all 12 jurors believe
      something happened, it has to be unanimous, in my opinion, to withstand
      constitution[al] scrutiny because it does not require the 12 of them to
      agree on what or at least on specific dates, specific times and things of
      that nature, it basically just sets up a scenario where someone can come
      in and say, somebody committed a crime against me and it was this and
      then that's all they have to say.

      And we believe it's unconstitutional, probably an overbroad argument
      more than anything.



Appellant’s objection to the jury charge was “that the law itself” “has to be

unanimous . . . to withstand constitution[al] scrutiny” because the jury is not required to

agree that the offenses occurred “on specific dates, specific times and things of that

nature . . . .”   This is clearly an objection that the statute, on its face, violates

defendants’ due process rights because juries are not required to be unanimous about

which individual acts constitute the required two or more acts of sexual abuse.

However, on appeal, appellant expressly disclaims advancing a constitutional challenge

to the statute and, rather, contends that the jury charge did not limit the acts upon which

appellant could be convicted to those identified in the indictment, namely, inducing S.M.

to masturbate. While we are cautioned not to be hyper-technical in our examination of



                                              5
whether error was preserved, we cannot conclude that appellant’s trial objection

comports with the argument he presents on appeal. See id. As such, appellant failed to

preserve the claim of error that he advances on appeal, so we must apply the

“egregious harm” standard. See Almanza, 686 S.W.2d at 171.


       The entirety of the jury charge in this case reveals that appellant did not suffer

egregious harm. The application paragraph properly directed the jury only to the acts of

sexual abuse authorized by the indictment, namely, acts of inducing S.M. to masturbate,

and did not authorize conviction for other acts about which the jury heard testimony,

such as “anal rape, complete regular sexual intercourse, exposure of genitals and

breast, etc.”   In determining whether the jury charge improperly expanded on the

allegations in the indictment, and in making a harm analysis, the proper focus is on the

language in the application paragraph. See Yzaguirre v. State, 394 S.W.3d 526, 530

(Tex. Crim. App. 2013). "Where the application paragraph correctly instructs the jury,

an error in the abstract instruction is not egregious." Medina v. State, 7 S.W.3d 633,

640 (Tex. Crim. App. 1999). Therefore, even if the instructions in the abstract portion of

the charge were erroneous, we cannot conclude appellant suffered egregious harm.

See Patrick v. State, 906 S.W.2d 481, 493 (Tex. Crim. App. 1995) (en banc).


       Recently, arguments substantially the same as the one advanced by appellant

have been presented to the Eastland and Dallas Courts of Appeals. See Martinez v.

State, No. 11-13-00080-CR, 2015 Tex. App. LEXIS 2656, at *19-21 (Tex. App.—

Eastland Mar. 20, 2015, pet. ref’d) (mem. op., not designated for publication); Perez v.

State, No. 05-12-00377-CR, 2013 Tex. App. LEXIS 10771, at *18-21 (Tex. App.—Dallas

Aug. 26, 2013, pet. ref’d) (not designated for publication).      In Martinez, appellant

                                            6
contended that the jury charge did not limit the jury to convict appellant only for the acts

alleged in the indictment, and not for the extraneous offense regarding appellant

touching the child’s breast. Citing that the charge used substantially the same language

as the statute and that the charge made no specific reference to appellant touching the

child’s breast, the Eastland Court concluded that, even if the charge was erroneous, it

did not cause appellant egregious harm. See Martinez, 2015 Tex. App. LEXIS 2656, at

*20-21. In Perez, the appellant presented the same argument that appellant presents in

this case. However, the Court concluded that,


       although the abstract portion of the charge included the full statutory
       definitions of "sexual contact" and "aggravated sexual assault of a child,"
       the application paragraph properly directed the jury only to the acts of
       sexual abuse authorized by the indictment, and did not authorize
       conviction for touching [the victim]'s breast or anal penetration. Therefore,
       even if the instructions were erroneous, we cannot conclude appellant
       suffered egregious harm.

Perez, 2013 Tex. App. LEXIS 10771, at *21 (citing Patrick, 906 S.W.2d at 493). We

agree with our sister courts’ analysis of this issue. We overrule appellant’s sole issue.


                                        Conclusion


       Having overruled appellant’s sole issue, we affirm the judgment of the trial court.




                                          Mackey K. Hancock
                                              Justice

Publish.




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