Opinion
Nos. 05-05-01687-CR, 05-05-01688-CR
Opinion issued July 16, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 3 Dallas County, Texas, Trial Court Cause Nos. F03-73030-TJ F03-73031-TJ.
Before Justices WHITTINGTON, MOSELEY, and O'NEILL.
OPINION ON REMAND
Meltron Levion Alberty appeals his convictions for aggravated sexual assault of a child under the age of fourteen years. After the jury found appellant guilty of both offenses, the trial judge sentenced him to fifteen years' confinement in each case. On original submission, we affirmed the trial court's judgments. On petition for discretionary review, the court of criminal appeals reversed our decision and remanded the cause for us to consider
whether the jury charge was erroneous because it did not limit the "on or about" language in regard to the statute of limitations to any date prior to the date of the filing of the indictment, August 27, 2003, and on or after the appellant's seventeenth birthday on July 7, 2003, thus permitting the jury to convict him on the basis of testimony about numerous offenses alleged to have been committed while appellant was a juvenile.Alberty v. State, 250 S.W.3d 115, 118 (Tex.Crim.App. 2008). After considering appellant's points of error on remand, we reverse the trial court's judgments and remand these cases for further proceedings. D.A. was born January 25, 1991. Appellant, who was born July 7, 1984, is D.A.'s uncle. In 2003, D.A. told several family members that appellant had been sexually assaulting him since D.A. was seven years old. According to D.A., appellant sexually abused him in excess of one hundred times over the five-year period, concluding with the last sexual assault that occurred when D.A. was twelve years old. On that occasion, appellant penetrated D.A. both orally and anally with appellant's penis. D.A. reported the abuse, and appellant was subsequently charged with intentionally and knowingly causing the contact and penetration of (i) D.A.'s anus by appellant's sexual organ on or about July 7, 2001 and (ii) D.A.'s mouth by appellant's sexual organ on or about June 1, 2003. After hearing D.A.'s testimony and other evidence, the jury found appellant guilty of both charges. This Court affirmed appellant's convictions. The Texas Court of Criminal Appeals reversed the cases and remanded for us to consider appellant's claim of jury charge error. Both appellant and the State were permitted to file briefs on remand.
Jury Charge Error
In his second point of error, appellant claims[t]he jury charges in these cases were erroneous in that they instructed the jury that they could convict appellant of any offense anterior to presentment of the indictment and within the statute of limitations, when in fact he could only be convicted of offenses occurring on or after his seventeenth birthday, July 7, 2001, since jurisdiction over offenses before that date had never been waived by the juvenile court.Appellant argues he was egregiously harmed by these jury charges because the State's evidence and the prosecutor's closing argument, along with the charges, encouraged the jury to convict appellant for offenses that occurred before he could be held legally responsible. We agree. Our first duty in analyzing a claim of jury charge error is to decide whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim App. 2005); Almanza v. State, 686 S.W.2d 157, 174 (Tex.Crim.App. 1984) (op. on reh'g). If we find error, we analyze that error for harm. Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex.Crim.App. 1994). When the defendant fails to object or states he has no objection to the charge, we will not reverse for jury charge error unless the record shows "egregious harm" to the defendant. Id. at 732; Warner v. State, 245 S.W.3d 458, 464 (Tex.Crim.App. 2008) (affirming that burdens of proof or persuasion have no place in harm analysis conducted under Almanza standard). Thus, we review claims of jury charge error by considering two questions: (i) whether error existed in the charge; and (ii) whether sufficient harm resulted from the error to compel reversal. Ngo, 175 S.W.3d at 74; Almanza, 686 S.W.2d at 174. When an indictment alleges a crime occurred "on or about" a certain date, the State may prove an offense "with a date other than the one specifically alleged so long as the date is anterior to the presentment of the indictment and within the statutory limitation period and the offense relied upon otherwise meets the description of the offense contained in the indictment." Yzaguirre v. State, 957 S.W.2d 38, 39 (Tex.Crim.App. 1997) ("In the absence of evidence that the offense occurred on [the date alleged in the indictment], the State was entitled to rely upon an instance of prior conduct occurring during the preceding year that otherwise met the description of the offense in the indictment."); Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App. 1997) ("It is well settled that the `on or about' language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period."). Nevertheless, section 8.07 of the penal code provides
[a] person may not be prosecuted for or convicted of any offense that the person committed when younger than 15 years of age except . . . a violation of a penal statue that is, or is a lesser included offense of, a capital felony, an aggravated controlled substance felony, or a felony of the first degree for which the person is transferred to the court under Section 54.02, Family Code, for prosecution if the person committed the offense when 14 years of age or older.Tex. Penal Code Ann. § 8.07(a) (Vernon Supp. 2007). Thus, unless the juvenile court waives jurisdiction pursuant to section 54.02 of the Texas Family Code and certifies the individual for criminal prosecution (or has previously done so), "a person may not be prosecuted for or convicted of any offense committed before reaching 17 years of age" except for certain offenses set forth in subsections (a)(1)-(5) that do not apply to appellant. Tex. Penal Code Ann. § 8.07(b); Tex. Fam. Code Ann. § 54.02 (Vernon 2002). It is uncontested the juvenile court did not waive jurisdiction over these cases and certify appellant for criminal prosecution. In appellate cause number 05-05-01687-CR, appellant was indicted for causing the contact and penetration of D.A.'s anus on or about July 7, 2001. The jury charge in that cause number provided
You are instructed that the State is not required to prove the exact date alleged in the indictment. The term "on or about the 1st of July 2001" means any date prior to the date of the filing of the indictment, August 27, 2003, and within the Statute of Limitations. The State of Limitations for this type of alleged offense is 10 years past the child's 18th birthday.
Now, bearing in mind the foregoing instructions, if you find and believe from the evidence, beyond a reasonable doubt, that [appellant], on or about the 1st day of July, 2001, in the County of Dallas and State of Texas, did then and there knowingly or intentionally cause the contact or penetration of the anus of [D.A.], a child, who was not the spouse of [appellant], by the sexual organ of [appellant], and at the time of the offense, the child was younger than 14 years of age, then you will find [appellant] guilty of the offense of Aggravated Sexual Assault, as charged in the indictment.In appellate cause number 05-05-01688-CR, appellant was indicted for causing the contact and penetration of D.A.'s mouth on or about June 1, 2003. The jury charge in cause number 05-05-01688-CR likewise provided
You are instructed that the State is not required to prove the exact date alleged in the indictment. The term "on or about the 1st of June, 2003" means any date prior to the date of the filing of the indictment, August 27, 2003, and within the Statute of Limitations. The State of Limitations for this type of alleged offense is 10 years past the child's 18th birthday.
Now, bearing in mind the foregoing instructions, if you find and believe from the evidence, beyond a reasonable doubt, that [appellant], on or about the 1st day of June, 2003, in the County of Dallas and State of Texas, did then and there knowingly or intentionally cause the contact or penetration of the mouth of [D.A.], a child, who was not the spouse of [appellant], by the sexual organ of [appellant], and at the time of the offense, the child was younger than 14 years of age, then you will find [appellant] guilty of the offense of Aggravated Sexual Assault, as charged in the indictment.These jury charges allowed the jury to convict appellant in each case using any offense that occurred prior to August 27, 2003, the date the indictments were presented, yet within the statutory limitation period, provided each offense otherwise met the description of the offense contained in the appropriate indictment. See Yzaguirre, 957 S.W.2d at 39. Under section 8.07 of the penal code, however, the jury could not convict appellant using any offenses that occurred before July 7, 2001, the date on which appellant turned seventeen, because the juvenile court did not waive jurisdiction and certify appellant under family law section 54.02 for any offenses alleged to have occurred before that date. Because the jury charges did not limit the "on or about" language, they allowed the jury to convict appellant on the basis of testimony about the numerous alleged offenses that occurred while appellant was a juvenile. Error clearly existed in the jury charges submitted in these cases. Having concluded the jury charges were erroneous, we now address whether appellant was harmed. Appellant concedes he did not object to the jury charge on this ground; thus, we will reverse only if the error was "so egregious and created such harm" that appellant "has not had a fair and impartial trial." Almanza, 686 S.W.2d at 171. "To be reversible, any unpreserved jury-charge error must result in `egregious harm' which affects `the very basis of the case,' deprives the defendant of a `valuable right,' or `vitally affect[s] a defensive theory.'" Olivas v. State, 202 S.W.3d 137, 144 (Tex.Crim.App. 2006) (citing Almanza, 686 S.W.2d at 172 and Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996)). Under Almanza, we should assess the harm by considering the entire charge, the state of the evidence, including contested issues and the weight of the probative evidence, the argument of counsel, and any other relevant information revealed by the record as a whole. Olivas, 202 S.W.3d at 144 (citing Hutch, 922 S.W.2d at 171). As noted above, the jury charges allowed the jury to convict appellant on evidence regarding numerous alleged offenses that occurred while appellant was a juvenile. This instruction was not "corrected or ameliorated" in another portion of the charge. Ngo, 175 S.W.3d at 752. Under section 8.07, appellant could not be held criminally responsible for any aggravated sexual assaults allegedly committed while he was 14, 15, or 16 years of age unless the juvenile court waived jurisdiction and certified him for criminal prosecution as an adult, nor could appellant be held criminally responsible at all for the aggravated sexual assaults allegedly committed while he was under the age of 14 years. See Tex. Penal Code Ann. § 8.07(a), (b); see also Alberty, 250 S.W.3d at 118. Thus, the jury charges allowed the jury to convict appellant for offenses when the jury had no legal authority to do so. When reviewing the first factor of the Almanza harm analysis, we must presume the jury understood and followed the court's charge absent evidence to the contrary. Hutch, 922 S.W.2d at 172. Under this presumption, we must presume the jury considered evidence of all offenses alleged to have occurred on "any date prior to the date of the filing of the indictment, August 27, 2003, and within the Statute of Limitations." See id. Under the second factor of the analysis, we consider the state of the evidence, including whether the jury charge error related to a contested issue. Olivas, 202 S.W.3d at 144; Hutch, 922 S.W.2d at 172. D.A. testified he was seven years old when the alleged abuse began and twelve years old at the time of the last incident. His testimony lasted thirty pages. Of those thirty pages, six pages encompassed explicit and detailed testimony about the first time he was abused, and five pages encompassed testimony about the last time he was abused. The remaining testimony involved general information (name, age on date of trial, where he attends school, family members, interest, and hobbies) about D.A., testimony about the alleged abuse generally, and testimony about his outcry and the investigation. On cross-examination, D.A. testified at length about the abuse generally. When asked how many times it happened over the five-year period, he initially estimated "over 50 times," but later testified it was "[a]bout a hundred, close to 200 or 150, something like that." D.A. testified his brother, who is fifteen months older than D.A., witnessed the abuse on one occasion when D.A. was "older than ten." Then when D.A. was "probably eleven," he was in appellant's room when appellant called D.A.'s brother and forced him to participate. When D.A.'s brother began crying, appellant ordered him out of the room. D.A.'s mother testified that when D.A. was six to eight years old, he often did not want to go to his grandmother's house where appellant lived. She also testified she confronted appellant who admitted to doing something to D.A. when appellant was thirteen. Appellant did not admit to abusing D.A. at any other time. D.A.'s brother testified he did not see appellant sexually abuse D.A. nor did he engage in sexual behavior with appellant and D.A. The issue in these cases was clearly contested. And, as noted previously, there is nothing in the record to indicate the jury did not follow the erroneous instructions and considered evidence of all offenses alleged to have occurred prior to the filing of the indictments. Third, we examine the argument of counsel. The bulk of the argument addressed the credibility of the witnesses. Neither side argued specific dates or instances of sexual behavior. The prosecutor did not focus on a particular incident to support the State's argument for convictions, however, the prosecutor did repeatedly mention "five-plus years." Appellant was "entitled to be convicted upon a correct statement of the law." Hutch, 922 S.W.2d at 174. A jury that followed the trial judge's instructions would consider all the evidence presented at trial, including detailed and explicit testimony about events that occurred when appellant was thirteen, fourteen, fifteen, and sixteen years of age, and would very likely render a verdict in conflict with section 8.07 of the Texas Penal Code. After considering the entire charge, the evidence, including the contested issue, and the argument of counsel, we cannot conclude, as the State argues, that the jury charge error "did not interfere with the Appellant's right to a fair trial based on his adult misconduct." We conclude the jury charge error egregiously harmed appellant. We sustain appellant's second point of error. In light of our disposition of this point, we need not address appellant's first point of error. See Tex. R. App. P. 47.1 We reverse the trial court's judgments and remand these cases to the trial court for further proceedings.