                              Fourth Court of Appeals
                                     San Antonio, Texas
                                             OPINION
                                        No. 04-12-00213-CR

                                        Justin Wade SMITH,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                   From the 25th Judicial District Court, Guadalupe County, Texas
                                    Trial Court No. 10-2531-CR
                            Honorable W.C. Kirkendall, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: February 27, 2013

AFFIRMED

           Justin Wade Smith, appellant, was convicted by a jury of continuous sexual abuse of a

child, R.W., and sentenced to forty years’ confinement. He appeals and argues: (1) the evidence

proving the second incident of abuse against R.W. occurred thirty days or more after the first

incident was insufficient, (2) the evidence proving R.W. was younger than fourteen years of age

on the date of the second incident was insufficient, (3) the jury charge erroneously failed to

instruct the jury they must agree unanimously that appellant, during a period that is thirty days or

more in duration, committed two or more acts of sexual abuse, and (4) the jury charge denied
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appellant his right to a unanimous verdict because it did not instruct the jury they must agree

unanimously that appellant, during a period that is thirty days or more in duration, committed

two or more acts of sexual abuse. We affirm.

                                   SUFFICIENCY OF THE EVIDENCE

         A person commits the offense of continuous sexual abuse of a young child if, during a

period that is thirty 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

seventeen years of age or older and the victim is a child younger than fourteen years of age. TEX

PENAL CODE ANN. § 21.02 (West 2010).

         In reviewing for sufficiency of the evidence, we view all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893,

899 (Tex. Crim. App. 2010).                 We give deference to the jury’s credibility and weight

determinations, and to their duty to resolve conflicts in the testimony. Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007). We defer to the jury’s determination of the weight to be

given to contradictory testimonial evidence because resolution is often determined by the jurors’

evaluation of the witnesses’ credibility and demeanor. Johnson v. State, 23 S.W.3d 1, 8–9 (Tex.

Crim. App. 2000) (en banc), overruled on other grounds by Brooks v. State, 323 S.W.3d 893,

912–13 (Tex. Crim. App. 2010).

         Appellant was the live-in boyfriend of Susan. 1 The victim, R.W., is Susan’s niece. R.W.

was born on September 16, 1995. R.W. lives with her grandparents, but testified she would visit




1
  For the protection of the identity of the minor child, all adults will be referred to as either appellant(s) or by their
first name only.

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her Aunt Susan every other weekend and would stay with Susan and appellant. R.W. testified

about two acts of sexual abuse by appellant that occurred when she was thirteen years old.

       R.W. testified the first act occurred on New Year’s Eve of 2008. According to R.W., she

was at Susan and appellant’s house for a New Year’s Eve party. After the party ended, everyone

left, Susan went to bed, and R.W. and appellant stayed up and watched television in the living

room. R.W. testified that she was lying down on the couch, falling asleep, when she awoke to

find appellant touching her inappropriately. R.W. stated: “I felt something like in my pants, and

he was putting his finger in my vagina hole.” R.W. yelled “stop” at appellant loud enough to

wake Susan, who was sleeping in the bedroom. Susan testified she came out of the bedroom to

find R.W. sitting on the couch with her knees up on the couch facing appellant, and that

appellant “had his hand between her legs” above the knees. Susan asked if R.W. was okay, to

which R.W. replied she was fine. Susan testified she went back to bed “thinking everything was

okay.” R.W. stayed at the house until morning when her grandmother came to pick her up. She

did not tell anyone about the incident.

       R.W. testified the second incident happened about four months later in April of 2009.

According to R.W.’s testimony, she went inside appellant’s truck to get some DVD’s. Appellant

was a truck-driver and drove a semi-truck that had a small cabin inside. R.W. testified: “When I

went to the cab, [appellant] was in there, and like he pushed me on the bed, and he pulled down

my pants, and he stuck his penis in my hole, and I pushed him because it hurt.” R.W. testified

that her “hole” meant her vagina. R.W. could not remember how long this incident lasted. She

stated after she pushed him off she ran inside, but did not tell anyone what had occurred.

       In May of 2010, when she was fourteen years old, R.W. told a teacher about the abuse

that had occurred. R.W. testified she finally told because she was having “really bad flashbacks”

about the incidents. R.W.’s teacher, Barbara, testified R.W. came to her and told her how she
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was concerned about a “friend” because she felt like her “friend” was in a dangerous situation.

R.W. asked Barbara about the process she would need to go through to help her “friend.” After

Barbara explained the process of reporting abuse, R.W. asked if reporting the abuse would

“save” the “friend.” Barbara told R.W. she “may very well be saving her,” and R.W. then burst

into tears and told Barbara, “I wish someone could save me.” Barbara took R.W. to the school

counselor and they reported the sexual abuse.

           In his first and second issues on appeal, appellant contends the evidence presented at trial

(1) was insufficient to prove the second incident of abuse against R.W. occurred thirty days or

more after the first incident and (2) was insufficient to prove R.W. was under fourteen years of

age at the time of the second incident of abuse.

           Appellant argues the State failed to provide sufficient evidence to prove a date or even a

time period when the second incident occurred. Appellant contends R.W. testified to two

different time periods as the date the second incident occurred—April 2009 and April 2010. He

argues this demonstrated R.W. was not able to remember a date or time period and, therefore, the

State failed to provide sufficient evidence of when the second incident occurred. Appellant also

contends that because R.W. testified that she was either thirteen or fourteen at the time the

second incident occurred, and because R.W. turned fourteen eight months before her outcry, the

State failed to prove she was under the age of fourteen at the time of the second incident. On

direct, the State questioned R.W. as follows:

           Q:       Now, I want to take you back to April 15th or thereabouts of 2009, okay?
           A:       Okay.
           Q:       About four months later. 2
           A:       Yes.




2
    Referring to four months after the first incident of abuse on New Year’s Eve 2008.

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Later, on cross-examination, appellant’s trial counsel questioned R.W. about the timing of the

second incident:

        Q:     Okay, I want to talk about the — the second incident for a moment. Now,
        the Prosecutor asked about a date, April 15th of 2009. Do you know when the
        second incident took place?
        A:     I don’t remember.
        Q:     Okay, so when you agreed with him April 15th, 2009, is that just because
        he suggested it to you?
        A:     Yes.

On re-direct examination, the State asked R.W. to clarify the dates:

        Q:      Okay, [R.W.], I just have a couple of questions for you. I — I think when
        [defense counsel] had you on cross-examination, he asked you if you had talked
        to your teacher and counselor in May of 2010, and you agreed —
        A:      Yes.
        Q:      — do you remember? So that was actually only one month after the
        sexual assault by the Defendant, right?
        A:      Yes.
        Q:      So you basically told within a month —
        A:      Yes.
        Q:      — of the sexual assault.
        A:      Yes.
        Q:      Now, [R.W.], you had had some trouble remembering, you know,
        sequences of events and details, facts, dates, what had happened.
        A:      Yes.
        Q:      Can you tell the jury why that is?
        A:      Because it was a long time ago. 3

Appellant’s counsel then questioned R.W. again:

        Q:      Are you saying now that the sexual assault, the second one, now took
        place some time in 2010, or was it in 2009?
        A:      I don’t remember.
        Q:      How old were you when the second incident took place.
        A:      I think I was 14.
        Q:      You were 14?
        A:      Yes.
        Q:      Okay. Now, you said the first incident happened December 31st of 2008,
        correct?
        A:      Yes.
        Q:      Okay, what grade were you in?

3
  The trial took place in January of 2012, approximately three years from the date of the first incident of sexual
abuse.

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       A:      What grade?
       Q:      What grade in school were you in?
       A:      7th.
       Q:      7th. When the second incident took place, you were in 7th grade as well,
       correct?
       A:      Yes.
       Q:      Okay, and the allegation that you made to a teacher, that took place in
       May of 2010, correct?
       A:      Yes.

       R.W. was thirteen years old and in seventh grade during the 2008/2009 school year.

Although R.W. stated she believed she was fourteen when the second incident occurred, R.W.

also testified that both incidents took place while she was in seventh grade, putting the time

period of the second incident of abuse before May of 2009—the end of her seventh grade school

year. R.W. did not turn fourteen until September of 2009. The State further questioned R.W.:

       Q:     So it was May of 2010 when you reported it to the teacher and
       counselor—
       A:     Yes.
       Q:     — so it was a year?
       A:     Yes.
       Q:     Okay, so that — that means that the rig incident, the truck incident
       would’ve been April of 2009, like you testified previously.
       A:     Yes.
       Q:     And then you waited a year to report it.
       A:     Yes.
       Q:     Okay, can you tell us why?
       A:     Because I was scared to tell anybody.

       Appellant is correct that the record shows there was some confusion as to the date of the

second incident of abuse.    R.W. indicated she had some trouble recalling events and her

testimony suggests two different time periods. However, we must defer to the jury to resolve

conflicts in the testimony. Hooper, 214 S.W.3d at 13.

       Additional evidence presented at trial supported the second incident of abuse occurring in

April of 2009. Craig Jones, the investigating officer assigned to R.W.’s case, testified he chose

not to subject R.W. to a medical examination during his investigation. Jones stated his reasons


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for this were as follows: “We’re talking a yearish had gone by since she alleged anything had

happened. . . . So in this, I made the decision, and I’ll stand by that decision to this day because

we had had a year gone by, I didn’t think that it was proper to have her participate in a SANE

. . . . Since [sic] year had gone, I just didn’t think it was appropriate for this young lady.” Jones’s

testimony indicated a year had passed between the last incident of sexual abuse and her outcry.

It is not disputed R.W. made her outcry in May of 2010. This would place the time of the second

incident of abuse around April/May of 2009, at which time R.W. was thirteen years old.

       Based on the foregoing, we conclude the evidence presented at trial, in the light most

favorable to the verdict, was sufficient to establish the second incident of sexual abuse occurred

on or around April 15, 2009—a date more than thirty days from the first incident that occurred

on New Year’s Eve of 2008 and at which time R.W. was thirteen years of age.

                                         JURY CHARGE

       In his third and fourth issues on appeal, appellant challenges the jury charge. First,

appellant contends the jury charge erroneously failed to instruct the jury in accordance with

Penal Code section 21.02 that they must agree unanimously that appellant, during a period that is

thirty days or more in duration, committed two or more acts of sexual abuse. Second, appellant

contends because the court failed to include this instruction, he was denied the right to a

unanimous verdict in violation of his due process and constitutional right to a unanimous jury

verdict.

       In analyzing a jury-charge issue, we must first determine whether error exists. Ngo v.

State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (en banc). If there was error, we must next

analyze that error for harm. Id. The degree of harm necessary for reversal depends on whether

the defendant preserved the error by objecting to the charge at trial. Id. If the defendant

objected, we will reverse if we find “some harm.” Id. (citing Almanza v. State, 686 S.W.2d 157,
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171 (Tex. Crim. App. 1984)). When the defendant failed to object, we will not reverse for error

in the jury charge unless the record demonstrates “egregious harm” to the defendant. Id. at 743–

44.

       The continuous sexual abuse statute, Penal Code section 21.02, provides: “If a jury is a

trier of fact, members of the jury are not required to agree unanimously on which specific acts of

sexual abuse were committed by the defendant or the exact date when those acts were

committed. The jury must agree unanimously that the defendant, during a period that is 30 days

or more in duration, committed two or more acts of sexual abuse.” TEX. PENAL CODE. ANN.

§ 21.02(d). On appeal, appellant asserts this language should have been included in the jury

charge and the failure to include it was in violation of Texas Code of Criminal Procedure article

36.14 and, thus, was error. We agree. Article 36.14 requires that a jury charge must be delivered

“distinctly setting forth the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14

(West 2007).    Because the unanimity requirements set forth in section 21.02(d) were not

included in appellant’s case, we conclude the charge was erroneous because the law applicable to

the case was not distinctly set forth in the jury charge as required by the Texas Code of Criminal

Procedure.

       Having concluded the charge was erroneous, we must now determine whether appellant

was harmed by the failure to include the unanimity instructions found in section 21.02.

Appellant did not object at trial to the charge, therefore we review the record for whether there

was “egregious harm” to the appellant. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1984) (en banc). Egregious harm affects “the very basis of the case,” deprives the defendant of a

“valuable right,” or “vitally affects a defensive theory.” Hutch v. State, 922 S.W.2d 166, 171

(Tex. Crim. App. 1996) (en banc) (citing Almanza, 686 S.W.2d at 172). Reversal is not required

unless the error is so egregious that the defendant was denied a fair and impartial trial. Almanza,
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686 S.W.2d at 171. We assess to determine whether the defendant suffered actual, not just

theoretical harm. Smith v. State, 340 S.W.3d 41, 51 (Tex. App.—Houston [1st Dist.] 2011, no

pet.). Egregious harm is a difficult standard to prove and must be determined on a case-by-case

basis. Id. Any harm that is inflicted by an erroneous charge must be assessed in light of (1) the

entire jury charge, (2) the state of the evidence, (3) the argument of counsel, and (4) any other

relevant information in the record. Id.

1. The Entire Jury Charge

       The application paragraph of the jury charge was as follows:

                Now bearing in mind the foregoing instructions, if you believe from the
       evidence beyond a reasonable doubt that on or about the 31st day of December,
       2008, through the 15th day of April, 2009, in Guadalupe County, Texas, the
       defendant Justin Smith, did then and there commit two or more acts of sexual
       abuse against [R.W.], a child younger than fourteen (14) years of age, more than
       thirty (30) days apart, namely:

              That the defendant, Justin Smith, did then and there, with the intent to
       arose or gratify the sexual desire of Justin Smith, intentionally or knowingly
       engage in sexual contact with [R.W.] by touching the genitals of [R.W.], a child
       younger than fourteen (14) years of age with the defendant’s hand and or fingers,
       or

               That the defendant, Justin Smith, did then and there intentionally or
       knowingly cause the penetration of the sexual organ of [R.W.], by the defendant’s
       finger, and

               That the defendant the defendant [sic], Justin Smith, did then and there
       intentionally or knowingly cause the penetration of the sexual organ of [R.W.], a
       child under fourteen (14) years of age, with the defendant’s sexual organ (penis)
       then you will find the defendant guilty of Continuous Sexual Abuse.

While the instructions preceding this paragraph did not include the unanimity instructions from

section 21.02, the application paragraph made it clear that the jury must find appellant committed

two or more acts of sexual abuse, more than thirty days apart, against R.W. while she was

younger than fourteen years of age in order to find him guilty of continuous sexual abuse. The

charge, with the use of the words “or” and “and” separating the paragraphs also made clear that
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the jury had to find appellant committed the act referenced in either the first paragraph “or” the

second paragraph, “and” they must find appellant committed the act referenced in the third

paragraph to find him guilty of continuous sexual abuse. 4

2. The State of the Evidence

           In this section of the egregious harm analysis, appellant points to the state of the evidence

relating to the thirty or more days issue and directs us to the sufficiency of the evidence

argument in his first two issues. Appellant argues the failure to “include the jury instruction on

the very issue that the State offered so little evidence caused egregious harm to [a]ppellant.” We

have already concluded the evidence presented at trial was sufficient to establish the date of the

second incident was in April 2009—more than thirty days after the New Year’s Eve incident.

Therefore, we determine appellant’s argument regarding the state of the evidence as it relates to

the thirty or more days issue does not support his contention that there was egregious harm.

           Appellant also contends the testimony of the State’s witness, Miranda, confused the jury

in regards to the thirty day requirement. Miranda testified at trial that she witnessed R.W.

appearing very uncomfortable around appellant on one occasion when she was visiting R.W. at

R.W.’s aunt’s house in April of 2009. Miranda testified she saw appellant put a blanket over

himself and R.W. and that R.W. appeared to be very shaky and scared of appellant. There was

no additional testimony regarding this incident and the State did not allege it as a third incident

of sexual abuse. Appellant’s argument is that this testimony of alleged inappropriate behavior

presented to the jury “additional evidence to consider in relation to the thirty or more days

requirement,” thereby further confusing the jury.                   We conclude appellant’s argument that

Miranda’s testimony confused the jury and “led the jury to believe that they could consider the

incident described by Miranda . . . as one of the acts of abuse that the State needed to prove

4
    The charge also contained a general instruction that any verdict from the jury must be unanimous.

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against [a]ppellant” is without merit as there was nothing included in the charge for the jury to

consider what Miranda witnessed as an act of sexual abuse for purposes of finding him guilty of

continuous sexual abuse.

3. Arguments of Counsel

       During closing argument, the State argued as follows:

               I want to go through a couple of things in your charge. I want to go —
       have you go to Section 6. It’s the top of the third page. Section 6 tells you what
       the State has to prove. Do you remember how this charge was explained to you
       as a continuous sexual abuse case? Two or more acts of sexual abuse more than
       30 days apart. That’s explained to you in that first paragraph. If you’ll notice
       right after that, there are three paragraphs with Justin Smith’s name in bold, the
       next three paragraphs. Those are the three separate acts that [R.W.] says the
       Defendant did to her.

              Now, the — that second paragraph in Number 6, which is the first
       paragraph that starts, “the Defendant, Justin Smith, intentionally or knowingly
       engaged in sexual contact with [R.W.] by touching her genitals.” If you’ll go
       down to the very end of the paragraph, there’s an “or,” then there’s the next
       paragraph. That’s the allegation that the Defendant penetrated her sexual organ
       with his finger. You can — the reason there’s an “or” there is because those
       happened on the same date. Those are the New Year’s Eve allegations.

               You can choose one of those. You don’t have to be unanimous in which
       one of those you choose. Juror number five could say, I think he did the first one.
       Juror number six can say, he did the second one. But you all have to agree one of
       those occurred. You don’t have to agree which one; just that one of those
       occurred. You have to be unanimous on.

              At the end of that short second paragraph of allegations is an “and.” I
       underlined that “and” on my page. That’s the one that happened on in [sic] April
       of 2009 in the semi truck where [R.W.] told you that he raped her. You have to
       be unanimous on that one.

              So to be clear, because this is the confusing part of the Charge, it’s the —
       everything else is pretty self-explanatory. The first two are either/or those things
       that happened on December 31st, that New Year’s Eve night. You have to be
       unanimous on the last one, the one that happened in April in the semi truck.

       Because there were only two incidents of sexual abuse, the State’s closing arguments

made clear the jury had to be unanimous that the incident in the semi-truck occurred and they


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also had to be unanimous that on New Year’s Eve appellant either engaged in sexual contact

with R.W. or penetrated her with his finger in order to convict him of the offense of continuous

sexual abuse. This was an accurate recitation of the law because “members of the jury are not

required to agree unanimously on which specific acts of sexual abuse were committed by the

defendant.” TEX. PENAL CODE ANN. § 21.02(d). Therefore, in regards to the New Year’s Eve

allegations, the State correctly argued in closing that the jury did not have to unanimously agree

on which specific act the appellant committed, so long as they unanimously agreed an act of

sexual abuse occurred on New Year’s Eve.

       In Ngo, in addition to an erroneous jury charge, the State and the trial judge both

incorrectly told the jury they need not return a unanimous verdict during arguments. Ngo, 175

S.W.3d at 751 (“[B]oth the trial judge and the prosecution misstated the law at the very

beginning of the case and at the very end.”). Here, the State correctly informed the jury of the

correct legal principles regarding unanimity during arguments. See id. (indicating reasonable

jurors may infer the word “unanimously” from “the context of the entire charge or from the

comments of the advocates emphasizing the correct legal principles.”). We also note appellant’s

trial counsel made no closing arguments regarding unanimity as to the elements of the offense

(i.e. the dates of the offense, the age of the victim). Instead, closing argument was directed at

R.W.’s credibility.

4. Conclusion

       This was not a case in which the jury charge error was “compounded by the one

misleading statement concerning unanimity that was set out in the jury charge, as well as by the

affirmative statements of both the trial judge and prosecutor that the jury could indeed return a

non-unanimous verdict” as in Ngo. Ngo, 175 S.W.3d at 752. Nor was this a case in which the

jury was instructed on the opposite of the correct law. See Hutch, 992 S.W.2d at 173 (finding
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egregious harm when the erroneous charge instructed the jury of the complete opposite of the

correct law on legality of stops and admissibility of evidence when that law was the “crux” of

appellant’s defense). Instead, an instruction on unanimity in continuous sexual abuse cases was

erroneously excluded in the charge, but the jury was correctly instructed in the application

portion of the charge which clearly set out the elements of the offense the jury was required to

find beyond a reasonable doubt to convict appellant of continuous sexual abuse of a child. Based

on our review of the entire record, we conclude appellant was not denied a fair and impartial trial

and, therefore, was not egregiously harmed. 5

                                               CONCLUSION

        Based on the foregoing, we conclude the evidence was sufficient to find appellant guilty

of continuous sexual abuse of a R.W., a child. We also conclude the jury charge was erroneous;

however, appellant was not egregiously harmed by the error and he was not denied a unanimous

verdict. We affirm.


                                                               Sandee Bryan Marion, Justice


PUBLISH




5
  Because we conclude appellant was not egregiously harmed by the failure to include an instruction on unanimity,
we also conclude appellant was not denied the right to a unanimous verdict and, therefore, we overrule appellant’s
fourth issue on appeal.

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