                                                                          PD-1021-15
                                                         COURT OF CRIMINAL APPEALS
                                                                         AUSTIN, TEXAS
                                                       Transmitted 8/31/2015 11:50:57 PM
                                                           Accepted 9/1/2015 1:38:12 PM
                                                                          ABEL ACOSTA
                                                                                  CLERK
                 CAUSE NUMBER PD-1021-15

               IN THE COURT OF CRIMINAL
                   APPEALS OF TEXAS


        TIMOTHY EDWARD WHITINGTON,
                                               Petitioner,
                              vs.

                  THE STATE OF TEXAS,
                                               Respondent.


  SEEKING REVIEW OF THE EIGHTH COURT OF APPEALS’ JUDGMENT AND
              OPINION IN CAUSE NUMBER 08-13-00102-CR




 PETITION FOR DISCRETIONARY REVIEW

                                    WM. REAGAN WYNN
                                    SBN: 00797708

                                    KEARNEY | WYNN
     September 1, 2015              ONE MUSEUM PLACE
                                    3100 WEST 7TH STREET, SUITE 420
                                    FORT WORTH, TEXAS 76107
                                    (817) 336-5600
                                    (817) 336-5610 (fax)
                                    rwynn@kearneywynn.com

ORAL ARGUMENT IS REQUESTED          ATTORNEY FOR PETITIONER
                      IDENTITY OF JUDGE, PARTIES, AND COUNSEL

The trial court judge:      Hon. Ruben Gonzalez, Jr., Judge Presiding of the 432nd
                            Judicial District Court

The parties to the trial    Timothy Edward Whitington Defendant
court's judgment are:
                            The State of Texas            Prosecution

Trial counsel were:         Hon. Randy Bowers             Defense Counsel
                            3505 Airport Freeway
                            Fort Worth, Texas 76111

                            Hon. Stephanie Patten                Defense Counsel
                            2101 Moneda
                            Fort Worth, Texas 76111

                            Hon. Eric Nickols                    Prosecutor
                            Hon. Dale Smith                      Prosecutor

                            Tarrant County District Attorney's Office
                            401 West Belknap Street
                            Fort Worth, Texas 76196
                            (817) 884-1400

Appellate counsel are:      Wm. Reagan Wynn               Petitioner
                            Kearney | Wynn
                            3100 West 7th Street, Suite 420
                            Fort Worth, Texas 76107
                            (817) 336-5600
                            (817) 336-5610 (fax)
                            rwynn@kearneywynn.com

                            Hon. Debra Windsor            State of Texas

                            Tarrant County District Attorney's Office
                            Appellate Section
                            Address




                                                i                                         WHITINGTON v. STATE
                                                                           PETITION FOR DISCRETIONARY REVIEW
                                          TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES, AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . i

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

QUESTION PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

         I.       THE COURT OF APPEALS ERRED BY HOLDING THAT THE
                  APPLICATION OF THE CONTINUOUS SEXUAL ABUSE STATUTE
                  TO CONDUCT OCCURRING PRIOR TO THE EFFECTIVE DATE
                  OF THE STATUTE DID NOT AMOUNT TO AN EX POST FACTO
                  VIOLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

                  A.        The Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

                  B.        The Court of Appeals’ Opinion . . . . . . . . . . . . . . . . . . . . . . . . 4

                  C.        Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION . . . . . 11

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Court of Appeals’ Opinion and Judgment . . . . . . . . . . . . . . . . . . . . . . . Appendix 1

Court of Appeals Opinion on Rehearing . . . . . . . . . . . . . . . . . . . . . . . . Appendix 2


                                                            ii                                               WHITINGTON v. STATE
                                                                                              PETITION FOR DISCRETIONARY REVIEW
                  INDEX OF AUTHORITIES

CASES


CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES




                            iii                            WHITINGTON v. STATE
                                            PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS OF

TEXAS:

      COMES NOW TIMOTHY EDWARD WHITINGTON, Petitioner, by and

through his attorney of record, WM. REAGAN WYNN, and pursuant to Rule 68,

Texas Rules of Appellate Procedure, files this PETITION FOR DISCRETIONARY

REVIEW, and for such Petition would show this Court as follows:

                STATEMENT REGARDING ORAL ARGUMENT

      This Petition challenges the court of appeals’ resolution of Petitioner’s ex post

facto claim pertaining to trial court’s actions that allowed him to be convicted of

continuous sexual abuse based on conduct allegedly committed prior to the enactment

and effective date of the statute. This case involves complicated and important legal

issues that have never been squarely addressed by this Court and Petitioner

respectfully submits that this Court should grant oral argument so that counsel for

both sides may more fully present their positions and answer any questions this Court

may have after preliminarily reviewing this case.

                           STATEMENT OF THE CASE

      Petitioner was convicted by a Tarrant County jury of continuous sexual abuse

of a young child and sentenced to 50 years in prison without the possibility of parole.

On appeal to this Court, Petitioner argued in his first point of error that his conviction


                                            iv                                      WHITINGTON v. STATE
                                                                     PETITION FOR DISCRETIONARY REVIEW
was obtained in violation of the ex post facto prohibition of both the federal and state

constitutions because the jury was presented with evidence of acts prior to the

effective date of the statute that could have formed the basis for the conviction. The

Court of Appeals held that the ex post facto prohibition does not apply to judicial acts,

only legislative acts, and affirmed the trial court’s judgment.

                   STATEMENT OF PROCEDURAL HISTORY

      By an indictment filed May 31, 2012, Petitioner was charged with one count of

Continuous Sexual Abuse of a Child and with four other counts alleging sexual

performance by a child and indecency with a child by contact.[C.R. 6-7] This was a

re-indictment of an indictment originally returned November 30, 2011.[C.R. 10-11]

      On February 26, 2013, Petitioner was arraigned as to count one of the

indictment alleging continuous sexual abuse and entered a plea of not guilty to that

charge.[5 R.R. 5-6] Prior to jury selection, the State waived counts two through five

of the Indictment.[5 R.R. 6] A jury was then selected,[5 R.R. 6-156] seated,[5 R.R.

156-57] and sworn.[5 R.R. 156]

      On February 27, 2013, Count One of the Indictment was read in the presence

of the jury and Petitioner entered a plea of “not guilty.”[5 R.R. 15-16] Thereafter, trial

on the merits commenced.[5 R.R. 16] After hearing testimony for more than two days,

the court gave the case to the jury on March 1, 2013.[C.R. 103-15; 8 R.R. 61] The


                                            v                                       WHITINGTON v. STATE
                                                                     PETITION FOR DISCRETIONARY REVIEW
jury found Petitioner guilty of the sole count of continuous sexual abuse as alleged in

the Indictment.[C.R. 116; 8 R.R. 62]

      The trial on punishment was then conducted on the afternoon of March 1, 2013.

After hearing testimony from several witnesses, the court gave the case to the jury on

the issue of punishment.[C.R. 120-21; 9 R.R. 116, 120] The jury assessed Petitioner’s

punishment at incarceration for 50 years .[C.R. 122; 9 R.R. 121]

      The trial court entered its Judgment of Conviction by Jury in accordance with

the jury’s verdicts on March 1, 2013.[C.R. 426-28]

      Petitioner timely filed his Notice of Appeal on March 1, 2013.[C.R. 133] The

trial court certified that Petitioner has the right to appeal on March 1, 2013.[C.R. 132]

      The Eighth Court of Appeals affirmed the trial court’s judgment and sentence

on April 24, 2015. See Whitington v. State, No. 08-13–00102-CR, slip op. (Tex.

App.–El Paso April 24, 2015) (not designated for publication) (hereinafter

“Whitington I”).1 After receiving an extension of time, Petitioner filed his Motion for

Rehearing on June 10, 2015. On July 1, 2015, the court of appeals issued a written

Opinion on Rehearing denying the Motion for Rehearing. See Whitington v. State,




      1
       A copy of the Court of Appeals’ Opinion is attached to this Petition as
Appendix 1. See TEX. R. APP. P. 68.4(i).
                                           vi                                      WHITINGTON v. STATE
                                                                    PETITION FOR DISCRETIONARY REVIEW
No. 08-13-00102-CR, slip op. (Tex. App.–El Paso July 1, 2015) (op. on reh’g) (not

designated for publication) (hereinafter “Whitington II”).2

      On August 11, 2015, this Court entered an order granting Petitioner’s First

Motion for Extension of Time to File Petition for Discretionary Review. Pursuant to

the Order, this Petition is timely if filed in this Court on or before August 31, 2015.




      2
         A copy of the Court of Appeals’ Opinion on Rehearing is attached to this
Petition as Appendix 2. See TEX. R. APP. P. 68.4(i).
                                          vii                                    WHITINGTON v. STATE
                                                                  PETITION FOR DISCRETIONARY REVIEW
              QUESTION PRESENTED FOR REVIEW



Did the court of appeals err by holding that the application of the
continuous sexual abuse statute to conduct occurring prior to the
effective date of the statute did not amount to an ex post facto violation?




                                    1                                       WHITINGTON v. STATE
                                                             PETITION FOR DISCRETIONARY REVIEW
                                     ARGUMENT

                                            I.

      THE COURT OF APPEALS ERRED BY HOLDING THAT THE
      APPLICATION OF THE CONTINUOUS SEXUAL ABUSE
      STATUTE TO CONDUCT OCCURRING PRIOR TO THE
      EFFECTIVE DATE OF THE STATUTE DID NOT AMOUNT TO
      AN EX POST FACTO VIOLATION.

A.    The Facts

      Petitioner was indicted for the offense of continuous sexual abuse allegedly

committed against his son, E.[C.R. 6] The Indictment alleged that “on or about the 1st

day of August 2008 through the 26th day of December, 2010,” Petitioner “intentionally

or knowingly, during a period of time that is 30 days or more in duration, commit two

or more acts of sexual abuse . . .” against E.[C.R. 6] With regard to the “on or about”

date allegation in the Indictment, the jury was instructed that they could find Petitioner

guilty if they found beyond a reasonable doubt that he committed the two acts of

sexual abuse at any time prior to May 31, 2012.

      The evidence presented at trial revealed that E. was born in August 1999. [6

R.R. 133; 10 R.R. SX 34] E. started school shortly after he turned 5, which would

have been in August 2004.[7 R.R. 25] In December 2010, at the time Petitioner was

arrested, E. was 11 years old.[6 R.R. 84]




                                            2                                       WHITINGTON v. STATE
                                                                     PETITION FOR DISCRETIONARY REVIEW
      Evidence was presented from which jurors could have concluded that Petitioner

committed acts of sexual abuse against E. starting at a time prior to August 2004. In

particular, in his video-recorded interview, E. gave two different answers when asked

about the first time his father touched his [E’s] penis.[10 R.R. SX 34] Initially, E.

claimed that when he was very young – before he started Kindergarten – Petitioner

had shown him how to wash his penis.[10 R.R. SX 34] This would have been some

time before August 2004. Also, E. described touching Petitioner’s penis when E. was

very little.[10 R.R. SX 34] Further, when he was first interviewed by the CPS worker

and asked about touching, E. indicated that it had happened “a long time ago.”[6 R.R.

248, 250] Additionally, throughout the interview, E. is very vague about dates and

times of other alleged conduct and it would be possible to conclude that some of the

alleged conduct occurred when E. was younger.

      In his video-taped interview, Petitioner admitted to showering with E. when E.

was 6 to 8 years old.[10 R.R. SX 33] E. Would have turned 6 in August 2005, 7 in

August 2006, and 8 in August 2007.

      The State produced evidence from which jurors could have concluded that

Petitioner committed many more than the statutorily required two “acts of sexual

abuse.” Although the defense requested that the State be required to make an election

as to the evidence they would rely on for the specific “acts of sexual abuse” that could


                                           3                                      WHITINGTON v. STATE
                                                                   PETITION FOR DISCRETIONARY REVIEW
be considered by the jury in determining if Petitioner had committed the offense, the

trial court refused to force the State to make such an election.[8 R.R. 27-29] Further,

in compliance with section 21.02(d), Texas Penal Code, the jury was instructed that

they did not have to unanimously agree on which specific acts of sexual abuse were

committed by Petitioner or the exact date any such acts were committed.[C.R. 109]

See TEX. PENAL CODE ANN. § 21.02(d) (Vernon 20xx) (“If a jury is the 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.”)

      Therefore, it is impossible to tell from reviewing the Court’s Charge or Verdict

Form which specific acts of sexual abuse any particular juror or jurors believed

beyond a reasonable doubt that Petitioner committed.

B.    The Court of Appeals’ Opinion

      In his first point of error below, Petitioner argued that his conviction for

continuous sexual abuse was obtained in violation of the ex post facto prohibitions of

both the United States and Texas Constitutions because evidence was adduced at trial

of acts occurring prior to the effective date of the statute which could have been used

by the jury to find Petitioner guilty.




                                          4                                      WHITINGTON v. STATE
                                                                  PETITION FOR DISCRETIONARY REVIEW
       In its original opinion, the court of appeals noted that, “in order to prevail on

an ex post facto claim, Appellant was required to show that Section 21.02 itself

operates retroactively, not that the trial court applied it retroactively” and, essentially,

that a court cannot violate the ex post facto clause by applying a statute to conduct that

occurred before the effective date of the statute. See Whitington I, slip op. at 4-5.

       Petitioner argued on rehearing that the court of appeals’ opinion misapplied the

ex post facto prohibition as interpreted by the United States Supreme Court in Peugh

v. United States, 133 S. Ct. 2072 (2013) (plurality op.). On rehearing, the court of

appeals relied on this Court’s decision in Ex parte Heilman, 456 S.W.3d 159 (Tex.

Crim. App. 2015), to hold that it is “clear that Peugh did not expand the scope of the

Ex Post Facto Clause to situations in which a trial court has simply erred by

misapplying a law retroactively” and deny the Motion for Rehearing. See Whitington

II, slip op. at 3-4.

C.     Analysis

       Contrary to the court of appeals’ decision, the application of section 21.02 to

conduct occurring prior to September 1, 2007, was an ex post facto violation as

interpreted by the Supreme Court.

       Both the United States and Texas Constitutions forbid ex post facto laws. See

U.S. CONST. art. 1, §§ 9 cl. 3, 10 cl. 1; TEX. CONST. art. I, § 16. For purposes of this


                                             5                                       WHITINGTON v. STATE
                                                                      PETITION FOR DISCRETIONARY REVIEW
case, an ex post facto law (1) punishes as a crime an act previously committed which

was innocent when done, or (2) changes the punishment and inflicts a greater

punishment than the law attached to a criminal offense when committed. See, e.g.,

Carmell v. Texas, 529 U.S. 513, 522-25 (2000).

      The right to be free of ex post facto laws is an “absolute” right. See Marin v.

State, 851 S.W.2d 275-278 (Tex. Crim. App. 1993). The ex post facto prohibition

is more of a categorical and systemic prohibition imposed upon the government by the

people than it is an individual right. See Ieppert v. State, 908 S.W.2d 217, 220 (Tex.

Crim. App. 1995).

      While Courts agree that the ex post facto prohibition is aimed at legislative

bodies, “[t]he coverage of the Ex Post Facto clause is not limited to legislative acts.”

Peugh, 133 S. Ct. at 2072. Instead, “[t]he Clause ensures that individuals have fair

warning of applicable laws and guards against vindictive legislative action. . . . Even

where these concerns are not directly implicated, however, the Clause also safeguards

a fundamental fairness interest . . . in having the government abide by the rules of law

it establishes to govern the circumstances under which it can deprive a person of his

or her liberty or life.” Peugh, 133 S. Ct. at 2084-85(citations and quotations omitted).

      The continuous sexual abuse statute did not become effective until September

1, 2007, and it does not apply to any act committed before that date. See Act of May


                                           6                                      WHITINGTON v. STATE
                                                                   PETITION FOR DISCRETIONARY REVIEW
18, 2007, 80th Leg., R.S., ch. 593, §§ 1.17, 4.01(a), 2007 Tex. Gen. Laws 1120, 1127,

1148. The Continuous Sexual Abuse statute is a new statute that, prior to September

1, 2007, was not included in the Penal Laws of Texas. The statute was passed to

avoid the technical legal difficulties concerning double jeopardy, jury unanimity, due-

process notice, and election law that frequently arose in the context of cases involving

accusations of child sexual abuse. See generally, Jacobsen v. State, 325 S.W.3d 733,

738-39 (Tex. App.–Austin 2010, no pet.) (discussing Dixon v. State, 201 S.W.3d 731,

736-37 (Tex. Crim. App. 2006) (Cochran, J., concurring)).

      As set out above, the trial court in this case instructed the jury in such a way

that allowed them to consider evidence of acts alleged to have been committed by

Petitioner prior to September 1, 2007, as the “acts of sexual abuse” necessary to find

him guilty of the alleged violation of section 21.02. Further, although requested to do

so by the defense, the trial court refused to require the State to elect the particular

“acts of sexual abuse” it was relying on for conviction.[8 R.R. 27-29]

      The net effect of this was two fold. First, Petitioner’s alleged pre September 1,

2007, conduct was made the subject of a newly created substantive penal statute that

did not exist at the time of the alleged conduct. Second, to the extent that Petitioner’s

alleged pre September 1, 2007, conduct amounted to violations of a then existing




                                           7                                       WHITINGTON v. STATE
                                                                    PETITION FOR DISCRETIONARY REVIEW
penal statute, the punishment for the conduct was drastically increased by application

of the new statute.

      To the extent that the court of appeals relied on this Court’s recent opinion in

Heilman to find that there was no ex post facto violation in this case, that reliance is

misplaced. Heilman knowingly and voluntarily waived the two year misdemeanor

statute of limitations as part of a plea agreement whereby he avoided being indicted

for a felony charge that was not limitations barred. See Heilman, 456 S.W.3d at 161.

Six months into the deferred adjudication community supervision that he agreed to

accept to avoid being prosecuted for a felony, Heilman filed an Application for Writ

of Habeas Corpus alleging that the trial court lacked jurisdiction to accept his plea

because he had a “pure law” limitations defense which could not be waived and the

trial court granted relief. See id. Based on several considerations that are not present

in this case, this Court ultimately reversed the trial court’s grant of relief. Review of

this majority opinion and the various concurring and dissenting opinions in Heilman

reveals that its reasoning is not applicable here.

      First, the decision in Heilman turned on categorization of the limitations

defense. Without going into great detail, this Court ruled in Heilman that there is no

longer any distinction between “factual” and “pure law” limitations defenses for




                                           8                                       WHITINGTON v. STATE
                                                                    PETITION FOR DISCRETIONARY REVIEW
purpose of determining if limitations is a Marin3 category 1, 2, or 3 right. See id., 456

S.W.3d at 162-66. As set out above, ex post facto violations are category 1 rights that

cannot be waived, while, after Heilman, limitations violations are category 3 rights

that must be asserted in the trial court.

      In this case, the violation is not a “plain vanilla limitations claim” at all – it is

the retroactive application of a new statute to conduct occurring prior to the enactment

of the statute. This is precisely the type of “unforeseeable judicial enlargement of a

criminal statute, applied retroactively” that this Court refused to condone in Heilman.

See id. at 166.

      Second, in Heilman, this Court focused extensively on the fact that Heilman

bargained away his limitations rights to avoid being prosecuted for a felony and was

thus complicitous in the very limitations complaint that he sought to raise later. See

id. at 166-68. In this case, Petitioner did not, in any way, bargain for or condone the

application of the continuous sexual abuse statute to his conduct occurring before the

effective date.

      In sum, allowing the State to secure a conviction for violation of a new

substantive criminal statute requiring a minimum 25 year sentence without the

possibility of parole on the basis of conduct that occurred prior to the stated effective


      3
          See Marin, 851 S.W.2d at 279.
                                            9                                       WHITINGTON v. STATE
                                                                     PETITION FOR DISCRETIONARY REVIEW
date of that statute is fundamentally unfair in that it effectively allows the State to

thumb its nose at the express language of enabling legislation to the statute it was

seeking to enforce. This fundamentally unfair application of the statute is the type of

non-legislative conduct encompassed in the ex post facto prohibition as interpreted in

Peugh.

      By holding to the contrary, the court of appeals has decided an important

question of state or federal law in a way that conflicts with the applicable decisions

of the Court of Criminal Appeals or the Supreme Court of the United States. See TEX.

R. APP. P. 66.3(c). Further, to the extent that this issue has not been squarely

addressed by this Court in Heilman or any other case, the court of appeals has decided

an important question of state and federal law that has not been, but should be, settled

by this Court. See TEX. R. APP. P. 66.3(b).

                                       PRAYER

      WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully prays that

this Court will grant this Petition for Discretionary Review, order a full briefing of the

issues presented herein, and after considering the merits, reverse the judgment of the

court of appeals, remand this cause to the trial court for a new trial, and grant such

other and further relief as he may show himself deserving, at law and in equity.




                                           10                                       WHITINGTON v. STATE
                                                                     PETITION FOR DISCRETIONARY REVIEW
                                          Respectfully submitted,

                                          /s/ Wm. Reagan Wynn
                                          WM. REAGAN WYNN
                                          State Bar No. 00797708

                                          KEARNEY | WYNN
                                          One Museum Place
                                          3100 West 7th Street, Suite 420
                                          Fort Worth, Texas 76107
                                          (817) 336-5600
                                          (817) 336-5610 (fax)
                                          rwynn@kearneywynn.com

                                          ATTORNEY FOR PETITIONER

  CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION

      I certify that this Petition was prepared with WordPerfect X5, and that,
according to that program’s word-count function, contains 3,408 words.


                                    /s/ Wm. Reagan Wynn
                                   WM. REAGAN WYNN




                                     11                                     WHITINGTON v. STATE
                                                             PETITION FOR DISCRETIONARY REVIEW
                    CERTIFICATE OF SERVICE

This is to certify that a copy of this Petition has been forwarded to:

      Debra Windsor
      Tarrant County District Attorney’s Office
      401 W. Belknap
      Fort Worth, Texas 76196-0201

      Lisa C. McMinn
      State Prosecuting Attorney
      P.O. Box 12405
      Austin, Texas 78711

on the 31st day of August, 2015.


                                    /s/ Wm. Reagan Wynn
                                   WM. REAGAN WYNN




                                    12                                     WHITINGTON v. STATE
                                                            PETITION FOR DISCRETIONARY REVIEW
                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 TIMOTHY EDWARD WHITINGTON,                     §
                                                                No. 08-13-00102-CR
                             Appellant,         §
                                                                   Appeal from the
 v.                                             §
                                                                 432nd District Court
 THE STATE OF TEXAS,                            §
                                                              of Tarrant County, Texas
                             Appellee.          §
                                                                   (TC#1284003R)
                                                 §


                                          OPINION

       Appellant Timothy Edward Whitington was convicted of continuous sexual abuse of a

young child and sentenced to 50 years’ confinement. See TEX.PENAL CODE ANN. § 21.02(b)

(West Supp. 2014). On appeal, Appellant contends his conviction constitutes an ex post facto

application of the continuous sexual abuse statute. In a related issue, he contends the jury charge

erroneously permitted the jury to convict him based on conduct occurring before the effective date

of the statute. Appellant also contends the jury charge erroneously enlarged the allegations in the

indictment and failed to include all the elements of the predicate offenses. We conclude there was
no ex post facto violation and no reversible error in the jury charge. Accordingly, we affirm.1

                                              BACKGROUND

        Appellant had a son, E. Appellant and E were often nude when they were together.

Sometimes they used an internet video connection to chat with other nude men and their nude

sons. Sometimes they visited other men, some of who had sons, and the visits included nudity.

        Appellant became the focus of a federal investigation after a tip from INTERPOL to U.S.

authorities. Federal agents obtained a warrant to search Appellant’s apartment. At one point

during the search, Appellant told the agents, “You’re here for the bad stuff,” and directed the

agents to a password-protected USB computer storage device and provided the password.

        When the agents showed Appellant an excerpt of chats between his email account and a

man in the United Kingdom, Appellant admitted the chats were his and that he had sent nude

photos of E to the man. The chats describe Appellant and the other man’s sexual attraction to

their children. In them, Appellant shares that he and E masturbate each other, but that E is

unwilling to do more. The two men discuss having the other man’s son perform sexual acts on

him during their video chats, with E watching, so that E will become comfortable with the idea.

Appellant expresses his intent to engage in anal sex with E when E is older and more receptive to

it.

        Appellant revealed to the agents that before they arrived that day, he and E had been

chatting over the internet-video connection with another man and his three sons who lived in

Michigan. He said everyone involved was nude and that he and the Michigan man discussed their

sexual interest in children. Photos were taken, including a close-up of E’s genitals.

1
  This case was transferred from the Second Court of Appeals in Fort Worth pursuant to a docket equalization order.
We therefore decide this case in accordance with the precedent of that Court to the extent required by TEX.R.APP.P.
41.3.
                                                        2
       Appellant admitted to the agents that he had touched E inappropriately. Appellant said that

E had been masturbating him since E turned nine years old in August 2008.     Appellant described

an incident in November 2009 in which he stroked E’s erect penis while they were in bed nude

together, and an incident in October 2010 when he and E touched each other’s penises. Appellant

reported he had ejaculated. He said his last sexual contact with E was December 26, 2010, the

day before the search.

       After Appellant was arrested by federal officers, he agreed to a videotaped interview with a

Euless police detective. That video interview was admitted into evidence and played to the jury.

Appellant admitted to the detective that the close-up photo of E’s genitals had been taken during

the video chat with the Michigan man and his children. Appellant described incidents in which he

masturbated in front of E, in which E touched his penis and helped him masturbate, and in which

he helped E masturbate, including two specific incidents in August and November 2010.

       E was interviewed by a forensic interviewer. A videotape of that interview was admitted

into evidence by agreement and played to the jury. In it, E describes video chatting while nude

with other men and boys, having his photo taken while he was nude, and visiting other men and

being nude with them. E told the interviewer that Appellant took pictures of him without clothes

and of his privates. He said that Appellant had touched E’s penis with his hand more than one

time. The first time, he was young and had not started school, and Appellant was just teaching

him how to clean himself. The other times he remembered were in the fourth grade, in the fifth

grade, during the summer before the sixth grade, and in the sixth grade the day before Appellant

was arrested. E also told the interviewer that he had touched Appellant’s penis. He said that it

happened when he was little and did not know what he was doing, and again when he was ten and


                                                3
eleven years old – once or twice in the fifth grade and once in the sixth grade.2                                The jury

convicted Appellant of continuous sexual abuse of a child. At punishment, the jury heard that

Appellant had pleaded guilty in federal court to producing child pornography and had been

sentenced to 192 months in the federal penitentiary. The jury assessed Appellant’s punishment at

50 years in prison. Appellant’s 50-year sentence was allowed to run concurrently with his federal

sentence.

                                                    DISCUSSION

                                              Ex Post Facto Violation

         In his first issue, Appellant contends his conviction for continuous sexual abuse violates

the ex post facto clauses in the Texas and United States Constitutions. He points out that the

statute outlawing continuous sexual abuse of a child, TEX.PENAL CODE ANN. § 21.02, became

effective September 1, 2007, and does not apply to acts of sexual abuse committed before that date.

See Act of May 18, 2007, 80th Leg., R.S., ch. 593, §§ 1.17, 4.01(a), 2007 TEX. GEN. LAWS 1120,

1127, 1148. Appellant argues an ex post facto violation occurred because the jury heard evidence

of conduct occurring before the effective date of the statute and was instructed in the jury charge in

such a manner that it could have considered that conduct as part of the alleged offense.

         Appellant’s argument is misplaced. Both the federal and state constitutions prohibit the

promulgation of an “ex post facto law.” See U.S. CONST. art. I, § 10; TEX. CONST. art. I, § 16.

This prohibition bars in part prosecution or conviction for behavior that did not constitute a

criminal offense when it happened. Rodriguez v. State, 93 S.W.3d 60, 66-67 (Tex.Crim.App.

2002); see also Collins v. Youngblood, 497 U.S. 37, 42–44, 110 S.Ct. 2715, 111 L.Ed.2d 30


2
  E testified at trial, but was not questioned about the abuse because he stated he did not want to talk about it in front of
the jury.
                                                             4
(1990). In both provisions, however, “the language is directed at the Legislature, not the courts.”

Ortiz v. State, 93 S.W.3d 79, 91 (Tex.Crim.App. 2002).             “Indeed, the Supreme Court has

indicated that an ex post facto problem does not arise from a trial court’s erroneous retroactive

application of a statute, but only if the statute itself has retroactive effect.” Id. (citing Johnson v.

United States, 529 U.S. 694, 701–02, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000)).

       Consequently, in order to prevail on an ex post facto claim, Appellant was required to show

that Section 21.02 itself operates retroactively, not that the trial court applied it retroactively. Id.

For example, in Oritz, the appellant argued the ex post facto clause was violated because the trial

judge had erroneously charged the jury with the amended definition of retaliation rather than the

definition in effect as the time of the offense. Id. But, the Court of Criminal Appeals held there

was no ex post facto violation because the appellant failed to show, or argue, the statute itself

operated retroactively, but rather complained only about the trial court’s erroneous retroactive

application of the statute in the jury charge. Id. The Court of Criminal Appeals has recently

reaffirmed its holding in Ortiz: “Only the legislature can violate either the federal or state Ex Post

Facto Clause because – as we held in Ortiz v. State and now reaffirm – both are ‘directed at the

Legislature, not the courts.’” Ex parte Heilman, ___S.W.3d___, 2015 WL 1245933, at *3

(Tex.Crim.App. March 18, 2015).

       Appellant’s sole argument here is that an ex post facto violation occurred because the trial

court erroneously charged the jury and thereby allowed the jury to consider conduct occurring

before the effective date of the statute. As in Ortiz, Appellant has not shown, or even contended,

that Section 21.02 itself operates retroactively, and our review of the statute confirms that it does

not. Accordingly, we find no ex post facto violation, and overrule Issue One.


                                                   5
                                       Jury Charge Error

       Appellant raises three issues attacking the jury charge. In Issue Two, which is related to

the ex post facto challenge, Appellant contends the trial court erroneously instructed the jury it

could convict him based on conduct that occurred at any time prior to the return of the indictment,

thereby allowing the jury to consider evidence of acts committed before the effective date of the

continuous sexual abuse statute. In Issue Three, he contends the trial court erroneously enlarged

the allegations in the indictment by broadly defining the predicate offense of sexual performance

by a child to include conduct not alleged in the indictment. In Issue Four, Appellant contends the

application paragraph erroneously failed to include elements of the predicate offenses of

indecency with a child and sexual performance by a child. We conclude there is no reversible

error in the jury charge.

                                        Standard of Review

       Appellate review of purported error in a jury charge involves a two-step process. Kirsch

v. State, 357 S.W.3d 645, 649 (Tex.Crim.App. 2012). We first 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). Second, if error occurred, we then evaluate whether sufficient harm

resulted from the error to require reversal. Kirsch, 357 S.W.3d at 649; Hailey, 413 S.W.3d at 495.

       The degree of harm required for reversal depends on whether the error was preserved.

Villarreal v. State, 453 S.W.3d 429, 433 (Tex.Crim.App. 2015); Kirsch, 357 S.W.3d at 649.

When error is preserved in the trial court, the record must show only “some harm.” Almanza v.

State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985)(op. on reh’g). When error is not preserved,

reversal is required only if there was “egregious harm,” i.e., the error was so egregious and created


                                                 6
such harm that the defendant was deprived of a fair and impartial trial. See Villarreal, 453

S.W.3d at 433.

              Consideration of Conduct Predating the Effective Date of the Statute

       In Issue Two, Appellant contends the jury charge erroneously permitted the jury to convict

him based on acts he committed prior to September 1, 2007, the effective date of the continuous

sexual abuse statute.

       The application paragraph in the charge instructed the jury that in order to find Appellant

guilty, it must find he committed two or more acts of sexual abuse between August 1, 2008 and

December 26, 2010. The abstract portion of the charge, however, instructed the jury that

conviction could be had upon proof that the offense was committed any time before the

presentment of the indictment on May 31, 2012:

       You are further instructed that the State is not bound by the specific date on which
       the offense, if any, is alleged in the indictment to have been committed, but
       conviction may be had upon proof that the offense, if any, was committed any time
       prior to the presentment of the indictment … [which] was presented … May 31,
       2012.

       Appellant relies on Martin v. State, 335 S.W.3d 867 (Tex.App. – Austin 2011, pet. ref’d).

In Martin the application paragraph authorized conviction only if the jury found the continuing

sexual abuse occurred between October 1, 2007 and January 26, 2008. Id. at 873-74. The

charge also instructed the jury, however, that the “[S]tate is not required to prove the exact dates

alleged in the indictment but may prove the offenses, if any, to have been committed at any time

prior to the presentment of the indictment.” Id. at 873. The court recognized the longstanding

rule in Texas that the State may prove an offense was committed on any date prior to the return of

the indictment, but noted that in a continuous sexual abuse case, that rule conflicted with the


                                                 7
limitation making the statute inapplicable to acts of sexual abuse committed before September 1,

2007. Id. The court determined that aside from the application paragraph, “[t]he problem

remains” that there was nothing in the charge requiring or otherwise directing the jurors not to

convict the appellant based on findings of sexual abuse occurring before September 1, 2007. Id.

at 874-75. The court concluded the charge thus presented the jury with a broader chronological

perimeter than permitted by law. Id. at 875-76.              Accordingly, the court held the charge was

erroneous because the trial court failed to instruct the jurors on its own motion that they were not

permitted to convict based on acts committed before September 1, 2007. Id. at 876.

        Following Martin, the courts of appeals have uniformly determined that, even when the

application paragraph limits conviction to the proper time period, the charge is erroneous unless

the instruction on the nonbinding nature of the dates alleged in the indictment is somehow

specifically limited to require the jurors to convict based only on acts of sexual abuse occurring on

or after September 1, 2007. See, e.g., Gomez v. State, __S.W.3d__, 2015 WL 303095, at *5

(Tex.App. – Tyler Jan. 21, 2015, pet. filed); Kuhn v. State, 393 S.W.3d 519, 524 (Tex.App. –

Austin 2013, pet. ref’d);3 cf. Struckman v. State, No. 10-10-00427-CR, 2011 WL 4712236, at *2

(Tex.App. – Waco Oct. 5 2011, no pet.) (mem. op., not designated for publication) (distinguishing

Martin because the chronological perimeter was limited by a subsequent instruction that the State

had elected to proceed only on events occurring after September 1, 2007).




3
  See also Flores v. State, No. 13-12-00606-CR, 2014 WL 1514129, at *5 (Tex.App. – Corpus Christi-Edinburg April
17, 2014, pet. ref’d)(mem. op., not designated for publication); Oliver v. State, No. 10-12-00389-CR, 2014 WL
1016244, at **7-8 (Tex.App. – Waco March 13, 2014, no pet.) (mem. op., not designated for publication); Cortez v.
State, No. 13-10-00616-CR, 2012 WL 3134244, at *3 (Tex.App. – Corpus Christi-Edinburg Aug. 2, 2012, no
pet.)(mem. op., not designated for publication); Saldana v. State, No. 03-10-00371-CR, 2012 WL 3797611, at **2-3
(Tex.App. – Austin Aug. 31, 2012, pet. ref’d) (mem. op., not designated for publication)(holding that charge
erroneous because it stated the jury could consider events occurring “on or about” September 1, 2007).
                                                       8
       We likewise conclude that the jury charge in this case was erroneous in potentially

allowing the jury to convict Appellant based on acts he committed prior to September 1, 2007.

We also conclude, however, that the charge error was not egregiously harmful to Appellant. We

apply the egregious harm standard because Appellant failed to preserve error.              Although

Appellant objected to the jury instruction regarding the nonbinding nature of the dates alleged in

the indictment, he failed to preserve error because he did not object on the same ground he raises

on appeal and because he failed to sufficiently inform the trial court of the basis of his objection.

       The basic principle of error preservation is the complaining party must let the trial judge

know what he wants and why he thinks he is entitled to it, and do so clearly 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 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.

       Appellant argues on appeal that the instruction permitted the jury to potentially convict him

based on acts he committed before September 1, 2007. Appellant’s objection at trial, however,

focused on modifying the instruction to specifically identify the predicate offenses of indecency

with a child and sexual performance by a child as “the offenses,” and to emphasize that these

offenses must occur during a period of time of 30 or more days in duration, as required by the

statute. While Appellant’s objection referred to the time period alleged in the indictment (“on or


                                                  9
about August 1st, 2008, through December 26th, 2010”), Appellant never asserted that the

instruction as written would allow the jury to convict him based on conduct occurring before

September 1, 2007. In fact at one point, counsel appears to state that the portion of the instruction

allowing the State to prove the offenses by acts committed at any time prior to the presentment of

the indictment should remain in the charge. In sum, Appellant’s objection at trial did not raise the

ground he argues on appeal. Further, the trial objection was not clear enough to inform the trial

judge what Appellant wanted and why he was entitled to it. Appellant thus failed to preserve

error, and we apply the egregious harm standard.

        Charge error is egregiously harmful if it affects the very basis of the case, deprives the

defendant of a valuable right, or vitally affects a defensive theory. Villarreal, 453 S.W.3d at 433;

see also Allen v. State, 253 S.W.3d 260, 264 (Tex.Crim.App. 2008). Egregious harm is a “high

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

Villarreal, 453 S.W.3d at 433 (citing Reeves v. State, 420 S.W.3d 812, 816 (Tex.Crim.App.

2013)). We will not reverse a conviction unless the defendant has suffered “actual rather than

theoretical harm.” Id. (citing Cosio v. State, 353 S.W.3d 766, 777 (Tex.Crim.App. 2011)).

       In examining the record to determine whether charge error has resulted in egregious harm

to a defendant, we consider (1) the entirety of the jury charge, (2) the state of the evidence,

including the contested issues and weight of probative evidence, (3) the arguments of counsel, and

(4) any other relevant information revealed by the trial record as a whole. Id.

       The entirety of the jury charge mitigates against finding egregious harm. The charge

correctly instructed the jury that Appellant had been charged in the indictment with continuous

sexual abuse of a child “alleged to have been committed on or about the 1st day of August, 2008


                                                 10
through the 26th day of December, 2010[.]” Then, in the paragraph immediately preceding the

erroneous instruction, the jury was charged that in order to find Appellant guilty, it “must

unanimously agree that the defendant, during a period that is 30 or more days in duration, on or

about August 1st, 2008 through December 26, 2010 as charged in Count One of the Indictment,

committed two or more acts of sexual abuse.” Thus, the charge expressly reminded the jury of the

relevant time period in the case. Further, the erroneous portion of the charge was immediately

followed by the application paragraph that again correctly instructed the jury that to convict

Appellant, it must find beyond a reasonable doubt that Appellant, “on or about the 1st day of

August, 2008 through the 26th day of December, 2010,” committed two or more acts of sexual

abuse.

         Texas courts have repeatedly held that where the application paragraph of the charge

correctly instructs the jury on the law applicable to the case, this mitigates against a finding that

any error in the abstract portion of the charge was egregious. Kuhn, 393 S.W.3d at 529 (and cases

cited therein).

         Moreover, the trial court included a limiting instruction in the charge that if there was any

testimony regarding offenses other than those alleged in the indictment, the jury could only

consider those offenses in determining intent, state of mind, the previous and subsequent

relationship between Appellant and E, “and for no other purpose.” This instruction also weighs

against any finding that Appellant was denied a fair and impartial trial because it effectively

informed the jury not to convict Appellant based on acts he committed before September 1, 2007.

         The state of the evidence also weighs against finding egregious harm. Appellant points to

evidence presented at trial of acts occurring before September 1, 2007. Specifically, he points to


                                                  11
evidence that E stated that Appellant touched his penis before he started kindergarten; that E

described touching Appellant’s penis when he was “very little;” that E indicated to the CPS worker

that any touching happened “a long time ago;” that E was vague about dates of alleged conduct

during his interview; and that Appellant admitted to showering with E when E was 6 to 8 years old.

This evidence, however, could have been properly considered as circumstantial evidence of

Appellant’s intent, state of mind, or previous relationship with E, as directed by the limiting

instruction given in the charge (and to which Appellant did not object).            See TEX.CODE

CRIM.PROC.ANN. art. 38.37 (West Supp. 2014); see also Martin, 335 S.W.3d at 876.

       In any event, there was overwhelming evidence, some from Appellant himself, to support a

finding beyond a reasonable doubt that Appellant committed two or more acts of sexual abuse

during the relevant period after September 1, 2007.

       Appellant admitted that E had been masturbating him since E turned nine years old in

August 2008. Appellant described an incident in November 2009 in which he stroked E’s erect

penis and an incident in October 2010 where he and E touched each other’s penises. He admitted

to sexual contact with E on December 26, 2010, the day before the federal search, and that he had

shared photos of E’s genitals with others that same day. Appellant also described incidents in

which he masturbated in front of E, in which E touched his penis and helped him masturbate, and

in which he helped E masturbate, including two specific incidents in August and November 2010.

In his video interview, E said that Appellant had touched his penis in the fourth grade (i.e., after

August 2008), in the fifth grade, during the summer before the sixth grade, and in the sixth grade

the day before Appellant was arrested.        E also told the interviewer that he had touched

Appellant’s penis when he was ten and eleven years old – once or twice in the fifth grade and once


                                                12
in the sixth grade. This evidence was more than sufficient to convict Appellant based on acts of

sexual abuse occurring between August 1, 2008 and December 26, 2010. Thus, the jurors could

have lawfully convicted Appellant for continuous sexual abuse of a young child even if they had

been properly instructed not to base a conviction on Appellant’s conduct prior to September 1,

2007.

        Finally, neither the State nor Appellant mentioned or relied on the erroneous instruction in

argument, nor did they address or rely on any testimony or evidence of any acts occurring before

September 1, 2007. Instead, the State generally emphasized the sufficiency of the evidence,

including the admissions by Appellant, and specifically mentioned by date only incidents

occurring in 2010. Appellant’s principal argument was that the evidence was sufficient to convict

him only of the lesser-included offense of indecency with a child, but not sufficient to convict him

of continuous sexual abuse. Thus, there was nothing in the argument of counsel that focused the

jury on supporting conviction based on conduct occurring before September 1, 2007.

        Considering the above factors in their totality, we cannot conclude the charge error in this

case amounted to egregious harm that deprived Appellant of a fair and impartial trial. We

overrule Issue Two.

                              Conduct Not Alleged in the Indictment

        In Issue Three, Appellant complains the jury charge authorized conviction for conduct not

alleged in the indictment. In particular, Appellant contends that by including the full statutory

definitions of “sexual conduct,” “performance,” and “sexual performance” in the charge, the court

authorized conviction for acts of “sexual performance by a child” beyond the two theories alleged

in the indictment. Appellant did not raise these objections in the trial court. We conclude that


                                                13
even assuming it was error to instruct the jury on the full and correct statutory definitions,

Appellant did not suffer egregious harm.

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

two or more acts of “sexual abuse” during a period 30 or more days in duration.4 TEX.PENAL

CODE ANN. § 21.02(b) (West Supp. 2014). “Sexual abuse” is defined to include the violation of

several penal laws, including indecency with a child under Section 21.11(a)(1) (excluding

touching a child’s breast) and sexual performance by a child under Section 43.25.5 Id. at §

21.02(c)(2, 6).

           The indictment charged Appellant with continuous sexual abuse of E through (1)

indecency with a child, specifically by touching E’s genitals or causing E to touch Appellant’s

genitals; and/or (2) sexual performance by a child, specifically by causing E to engage in “sexual

conduct” by lewd exhibition of the genitals and/or by inducing E to masturbate in Appellant’s

presence. Appellant does not complain that the application paragraph itself expanded upon the

allegations in the indictment.             The application paragraph limited the predicate offenses of

indecency with a child and sexual performance by a child to the theories alleged in the indictment.

           Appellant’s complaint lies with the instructions in the abstract portion of the charge that

provided the full statutory definitions of “sexual conduct,” “performance,” and “sexual

performance.” 6 Appellant contends these instructions in the abstract portion of the charge, rather


4
 The defendant must be age 17 or older and the victim must be younger than age 14. TEX.PENAL CODE ANN. §
21.02(b)(2) (West Supp. 2014).
5
  “Sexual performance by a child” occurs when a person employs, authorizes, or induces a child younger than 18 to
engage in “sexual conduct” or a “sexual performance.” TEX.PENAL CODE ANN. § 43.25(b) (West 2011).
6
    The terms as defined in the charge, which are set out below, all conformed to the full statutory definitions:

    “Performance” means any play, picture, photograph, dance or other visual representation that can be exhibited before
                                                            14
than limiting “sexual performance by a child” to the two theories alleged in the indictment, greatly

expanded the theories available for conviction. For instance, Appellant contends these full

definitions allowed the jury to consider conviction not only based on his inducing E to masturbate

in his presence but also for inducing E to engage in deviate sexual intercourse, sexual bestiality,

sado-masochistic abuse, and the like. We disagree.

         The application paragraph is the “heart and soul” of the jury charge. See Vasquez v. State,

389 S.W.3d 361, 367 (Tex.Crim.App. 2012). The Court of Criminal Appeals has observed, “[i]t

is the application paragraph of the charge, not the abstract portion, that authorizes a conviction.”

Crenshaw v. State, 378 S.W.3d 460, 466 (Tex.Crim.App. 2012).                        And, the Court has recently

explained, this means that “the application paragraph is what, as a practical manner, authorizes the

jury to convict but is not necessarily determinative of what legally authorizes a conviction. The

application paragraph is what explains to the jury, in concrete terms, how to apply the law to the

facts of the case.” Yzaguirre v. State, 394 S.W.3d 526, 530 (Tex.Crim.App. 2013).

         In the instant case, the application paragraph properly directed the jury only to the acts of

sexual abuse authorized by the indictment, and did not authorize conviction for such things as

deviate sexual intercourse, sexual bestiality, or sado-masochistic abuse. 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. Id. “Where the


an audience of one or more persons. See TEX.PENAL CODE ANN. § 43.25(a)(3) (West 2011).

“Sexual performance” means any performance or part thereof that includes sexual conduct by a child younger than 18
years of age. See id. at § 43.25(a)(1).

“Sexual conduct” means sexual contact, actual or simulated intercourse, deviate sexual intercourse, sexual bestiality,
masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast
below the top of the areola. See id. at § 43.25(a)(2).

                                                          15
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)

(holding no harm where the application paragraph points the jury to the appropriate portions of the

definitions). Appellant’s third issue is overruled.

                                          The Application Paragraph

         In Issue Four, Appellant contends the application paragraph of the jury charge erroneously

failed to include all the elements of the predicate offenses of indecency with a child and sexual

performance by a child.7 Appellant did not raise these objections in the trial court.

         Appellant first argues the portion of the application paragraph concerning indecency with a

child failed to require the jury to determine whether he engaged in “sexual contact” and whether he

did so with the intent “to arouse or gratify the sexual desire of any person.” The application

paragraph was preceded in the abstract portion of the charge by instructions that contained these

elements, however. The jury was instructed that one commits the offense of indecency with a

child if that person intentionally “with the intent to arouse or gratify the sexual desire of any

person, engages in sexual contact with the child or causes the child to engage in sexual contact.”

The jury was also instructed that “sexual contact” includes “any touching by a person … of the

genitals of a child, or any touching of any part of the body of a child … with … any part of the

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

7
  The application paragraph instructed the jury that the acts of “sexual abuse” included: (a) indecency with a child –
by touching E’s genitals and/or causing E to touch Appellant’s genitals; and/or (b) sexual performance by a child – by
“causing” E to engage in “sexual conduct” of (i) lewd exhibition of the genitals and/or by (ii) “inducing” E to
masturbate in Appellant’s presence.

                                                         16
       Likewise, Appellant also argues the portion of the application paragraph concerning sexual

performance by a child failed to require the jury to determine that he induced E to engage in sexual

conduct “knowing the character and content thereof.” Again, however, the abstract portion of the

charge contained an instruction that included this element. The jury was instructed that one

commits the offense of sexual performance by a child if the person “knowing the character and

content thereof” induces the child “to engage in sexual conduct or a sexual performance.”

       The gravamen of Appellant’s complaint then is that the elements of these underlying or

predicate offenses were required to be included in the application paragraph and could not be

included elsewhere in the jury charge. We disagree.

       As this Court has recognized, under the plain language of Section 21.02(b), the offense of

continuous sexual abuse of a young child has five elements: (1) a person (2) who is 17 or older

(3) commits a series of two or more acts of sexual abuse (4) during a period of thirty or more days,

and (5) the victim is younger than 14. Casey v. State, 349 S.W.3d 825, 829 (Tex.App. – El Paso

2011, pet. ref’d). The specific acts of sexual abuse the defendant is alleged to have committed are

merely the manner and means by which the “series” element is accomplished.                Id.   The

application paragraph here properly addressed the five elements of the charged offense –

continuous sexual abuse of a young child. Since Appellant was tried for continuous sexual abuse

of a young child, and not for the offenses of indecency with a child and sexual performance by a

child, it was unnecessary to set out the constituent elements of those predicate offenses in the

application paragraph as long as those offenses were defined in the abstract portion of the charge.

See Rodriguez v. State, 687 S.W.2d 505, 509 (Tex.App. – Houston [1st Dist.] 1985, no pet.)

(holding that since appellant was indicted for burglary of a habitation with the intent to commit


                                                17
sexual assault, and not for sexual assault, it was unnecessary to set out the elements of sexual

assault in the application paragraph as long as those elements were defined in the abstract portion

of the charge).

         The application paragraph properly instructed the jury under what circumstances they

could convict Appellant. Those circumstances – commission of indecency with a child and/or

sexual performance by a child – were completely explained to the jury in the abstract portion of the

charge. The jury charge was not erroneous because the instructions provided a “complete map”

to the jury of “each step necessary to convict.” See Holley v. State, 766 S.W.2d 254, 256

(Tex.Crim.App. 1989) (despite application paragraph requiring jury to find for conviction that

defendant committed “a felony, to-wit: injury to a child,” the charge provided a “complete map” to

the jury because the abstract portion of the charge “completely explained to the jury” that it was a

felony to cause “serious bodily injury to a child”).

         Appellant also contends the portion of the application paragraph concerning sexual

performance by a child erroneously uses the term “causing” rather than the statutory term

“inducing” E to engage in sexual conduct.8 In this regard, a person commits the offense of sexual

performance by a child if he “employs, authorizes, or induces a child younger than 18 years of age

to engage in sexual conduct or a sexual performance.” TEX.PENAL CODE ANN. § 43.25(b)

(emphasis added). The abstract portion of the charge, however, correctly instructed the jury that a

person commits the offense of sexual performance by a child it the person “employs, authorizes, or

induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance.”

Like the Court of Criminal Appeals in Holly, we conclude that despite the use of the term

8
  The application paragraph provided in pertinent part that Appellant could be found guilty of continuous sexual abuse
of a young child if the jury found that he committed “two or more acts of sexual abuse” “to wit: … sexual performance
by a child by causing [E] to engage in sexual conduct ….”
                                                         18
“causing” in the application paragraph, the charge provides a complete map to the jury of each step

necessary to convict, because the abstract portion of the charge properly explains that a person

commits sexual performance by a child if he “induces” a child to engage in sexual conduct or a

sexual performance.

         In any event, Appellant did not object on this ground in the trial court. Considering the

entirety of the jury charge, we cannot conclude the jury was confused or misled by the use of the

term “causing” in the application paragraph, particularly when the jury was specifically charged in

the abstract portion that the offense of sexual performance by a child required that the defendant

induce the child to sexual conduct or a sexual performance. 9 Further, as described above,

Appellant’s own admissions established that he induced E to sexual conduct and sexual

performance. Moreover, in final arguments, neither the State nor Appellant attempted to raise

any distinction between Appellant’s “causing” or “inducing” E to sexual conduct or performance.

Even assuming error, we cannot conclude the error amounted to egregious harm that deprived

Appellant of a fair and impartial trial. We overrule Issue Four.

                                                CONCLUSION

         Accordingly, we affirm the trial court’s judgment.

                                                      STEVEN L. HUGHES, Justice

April 24, 2015

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)

9
  We note that the terms “causing” and “induce” have similar meanings in this context. “Causing” includes a person
acting “in such a way that some specific thing happens as a result,” and “induce” means “to lead or move by
persuasion or influence[.]” Webster’s New Universal Unabridged Dictionary (2003), pp. 330, 975. That Appellant
may have acted in such a way that E participated in sexual conduct as a result, or whether Appellant led or moved E to
do so by persuasion or influence, appears to be a distinction without a difference.
                                                         19
                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS
 TIMOTHY EDWARD WHITINGTON,                       §
                                                                  No. 08-13-00102-CR
                              Appellant,          §
                                                                     Appeal from the
 v.                                               §
                                                                   432nd District Court
 THE STATE OF TEXAS,                              §
                                                                of Tarrant County, Texas
                              Appellee.           §
                                                                     (TC#1284003R)
                                                  §

                                  OPINION ON REHEARING

       In denying Appellant’s ex post facto claim, we held that Appellant was required to show

that the statute itself operates retroactively, not that the trial court applied it retroactively. We

based our holding on Ortiz v. State, 93 S.W.3d 79, 91 (Tex.Crim.App. 2002), in which the Court of

Criminal Appeals concluded there was no ex post facto violation because the appellant failed to

show, or argue, that a statute itself operated retroactively, but rather complained only about the

trial court’s erroneous retroactive application of the statute in the jury charge. We noted that, like

the statute in Ortiz, the continuous sexual abuse statute does not itself operate retroactively;

indeed, the statute explicitly provides that it does not apply to acts of sexual abuse committed

before its effective date of September 1, 2007. See Act of May 18, 2007, 80th Leg., R.S., ch. 593,

§§ 1.17, 4.01(a), 2007 TEX. GEN. LAWS 1120, 1127, 1148. Therefore, we concluded that the error
                                                  1
that occurred in this case, in which the trial court allowed the jury to consider conduct occurring

before the effective date of the statute, resulted from the trial court’s erroneous application of the

statute, which did not amount to an ex post facto violation.

        On rehearing, Appellant contends that our holding conflicts with the United States

Supreme Court decision in Peugh v. United States, __U.S.__, 133 S.Ct. 2072, 186 L.Ed.2d 84

(2013). In particular, Appellant asserts that Peugh stands for the proposition that a trial court’s

improper retroactive application of a statute may violate the Ex Post Facto Clause. We disagree.

        In Peugh, the defendant was convicted of five counts of bank fraud that occurred in 1999

and 2000. The trial court sentenced him to 70 months’ imprisonment based on the Federal

Sentencing Guidelines issued by the United States Sentencing Commission in 2009, rather than on

the 1998 Guidelines that were in effect at the time he committed his offenses.1 Id. at 2079. The

defendant in Peugh contended that the trial court’s application of the 2009 Sentencing Guidelines

violated the Ex Post Facto Clause, and that he should have instead been sentenced under the 1998

version of the Sentencing Guidelines that were in effect at the time of his offenses. Id. at 2078.

        The Supreme Court initially noted that the Ex Post Facto Clause only forbids the passage

of ex post facto “laws”; as such, the Court questioned whether the Sentencing Guidelines had the

force and effect of law for purposes of the Ex Post Facto Clause. Id. In answering this question

in the affirmative, the Court initially pointed out that the Guidelines were promulgated by the

United States Sentencing Commission, which, in turn, was created by Congress for the delegated

purpose of adopting mandatory sentencing guidelines. Id. at 2079. The Court further noted that

18 U.S.C. § 3553(a)(4)(A)(ii) expressly instructs district courts to apply the Sentencing Guidelines

1
  The applicable sentencing range under the 1998 Guidelines was 30 to 37 months, while the sentencing range rose
under the 2009 Guidelines to 70 to 87 months, making the low end of the 2009 Guidelines 33 months higher than the
high end of the 1998 Guidelines range. Id. at 2078-79.
                                                       2
that are “in effect on the date the defendant is sentenced,” rather than the Guidelines in effect at the

time the defendant’s offense was committed. Id. at 2081. Because the defendant in Peugh did in

fact receive an increased punishment based on the trial court’s application of the Commission’s

2009 Sentencing Guidelines, which were adopted after he committed his offense, the Court held

that this violated the Ex Post Facto Clause.

        Appellant points out that in reaching this result, the Court in Peugh stated that the scope of

the Ex Post Facto Clause “is not limited to legislative acts,” and he believes that the Court thereby

intended to expand the scope and applicability of the Clause to other non-legislative situations,

such as when trial courts mistakenly apply laws retroactively. However, as the Texas Court of

Criminal Appeals explained in Ex parte Heilman, 456 S.W.3d 159 (Tex.Crim.App. 2015), Peugh

does not stand for this proposition.

        In Heilman, the Court recognized that under the holding in Peugh, it is not just the

legislature acting alone that may violate the Ex Post Facto Clause, and that executive agencies

may also violate the Clause when they are exercising rule-making authority delegated to them by

the legislature. Id. at 165 (noting that the legislature “cannot escape the strictures of either the

Texas or federal Ex Post Facto Clause by mere delegation”). However, the Court in Heilman

made it clear that Peugh did not expand the scope of the Ex Post Facto Clause to situations in

which a trial court has simply erred by misapplying a law retroactively; instead, the Court

explained that the error must have some “legislative origin” for the Ex Post Facto Clause to be

invoked. In particular, the Court noted that Peugh requires courts to “look beyond the actor that is

directly committing the alleged [ex post facto] violation for some legislative origin of the alleged

violation – such as the enabling statutes of either the United States Sentencing Commission in


                                                   3
Peugh, or the state parole board in Garner.” 2 Id. The Court concluded that “the Supreme

Court’s reasoning in Peugh reaffirms our holding in Ortiz that the Ex Post Facto Clause is

‘directed at the Legislature, not the courts.’” Id. at 165.

         Applying this rationale, the Court in Heilman found that no ex post facto violation occurred

where the trial court’s conduct – in accepting a plea agreement that allowed a defendant to plead

guilty to an otherwise time-barred plea offense – originated from the parties’ plea negotiations, and

did not derive from any law or rule enacted by the Legislature or a delegated body. Id.

         Similarly, in the present case, Appellant cannot point to any “legislative origin” for the

error in the trial court’s jury charge. The erroneous jury charge did not arise from any law or rule

promulgated by the Legislature or from any other legislative or executive body having delegated

rule-making authority.         In fact, as stated above, the continuous sexual abuse statute itself

explicitly disallows its ex post facto application, and the trial court therefore simply erred when it

applied the statute in that manner.

         As Peugh did not extend the scope of the Ex Post Facto Clause to judicial actions of this

nature, we conclude that Appellant has not shown an ex post facto violation based solely on the

trial court’s erroneous jury charge in this case. Appellant’s motion for rehearing is denied.


                                                      STEVEN L. HUGHES, Justice
July 1, 2015

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)


2
  In Garner, the U.S. Supreme Court held that the retroactive application of a rule promulgated by a state parole board
could arguably violate the Ex Post Facto Clause, as the Board operates under an “enabling statute” enacted by the
Georgia Legislature, which allowed the Board to adopt such rules and to make determinations regarding a prisoner’s
release. Garner v. Jones, 529 U.S. 244, 257, 120 S.Ct. 1362, 1371, 146 L.Ed.2d 236 (2000).
                                                          4
