Opinion
NO. 02-15-00091-CR
12-08-2016
JOSE LUIS PEREZ BASILIO AKA JOSE L. PEREZ APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1361709D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
A jury did not convict Appellant Jose Luis Perez Basilio, also known as Jose L. Perez, of continuous sexual abuse of a child, the sole live count in the indictment, but did convict him of three lesser included offenses of indecency with a child ("Offense One," "Offense Two," and "Offense Three"). In three separate judgments, the trial court sentenced him to ten years' confinement on each offense, ordering that the sentence for Offense Two run consecutively to the sentence for Offense One and that the sentence for Offense Three run concurrently. In three issues, Appellant contends that two of the child witnesses were incompetent to testify, that the evidence is insufficient to support his three convictions, and that the trial court reversibly erred by amending the jury charge after closing arguments. Because we hold that the trial court erred by signing two judgments of conviction for indecency by contact against the complainant S.R. when only one live count remained in the indictment, we vacate the trial court's judgment convicting and sentencing Appellant for Offense Three and dismiss the prosecution of that charge. We affirm the trial court's judgments for Offense One and Offense Two.
Brief Facts
Sisters S.R. and K.R., their brother A.R., their parents, and younger brothers lived with Appellant and his wife for a time. Some evenings, the children's mother (Mother) would leave the children at home alone with Appellant while she picked up their father at work. After S.R.'s parents caught her with lime or lemon beer salt that they did not use but that they knew Appellant used, allegations surfaced of sexual abuse of the two little girls by Appellant. The girls were both interviewed at the child advocacy center, and the younger one, K.R., also underwent a sexual assault exam.
At trial, S.R., K.R., and A.R. testified, as well as Mother, the people who interviewed the children at the child advocacy center, the nurse (SANE) who examined K.R., and the detective in charge of the case. The jury also watched and listened to a video of Appellant's interview with the police.
Count One of the indictment charged Appellant with committing continuous sexual abuse of a child on or about October 1, 2013, through January 14, 2014. The State waived Counts Two through Five, which alleged four separate acts of indecency with a child by contact regarding S.R.—two counts with "on or about" dates of October 1, 2013, and two counts with "on or about" dates of January 14, 2014.
In addition to charging the jury on Count One, the jury charge also charged the jury on three lesser included offenses of indecency with a child by contact—specifically, Appellant's touching of the named complainant's genitals with his hand. After the charge conference but still outside the presence of the jury, the trial court explained,
I have submitted by the agreement of both parties what as a matter of law are lesser-included offenses of the continuous sexual abuse of young child count, but they're labeled as "Offense One," "Offense Two," and "Offense Three" simply to assist []the jury in keeping track of which case is which alleged victim of circumstance, but as a matter of law, they're submitted as lessers.
K.R. was the named complainant in Offense One and Offense Three; S.R. was the named complainant in Offense Two. Originally, Offense One and Two had "on or about" dates of October 1, 2013, and Offense Three had an "on or about" date of January 14, 2014. After jury deliberations began, the trial court amended the "on or about" date of Offense Three to October 1, 2013.
Sufficiency of the Evidence
In part of his third issue, Appellant contends that the evidence is insufficient to support his convictions.
Standard of Review
In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).
This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015).
The trier of fact is the sole judge of the weight and credibility of the evidence. Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. Instead, we determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict. We must presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution.
See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).
See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012).
Murray, 457 S.W.3d at 448.
Id. at 448-49.
The standard of review is the same for direct and circumstantial evidence cases; circumstantial evidence is as probative as direct evidence in establishing guilt.
Dobbs, 434 S.W.3d at 170; Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014).
We must consider all the evidence admitted at trial, even improperly admitted evidence, when performing a sufficiency review.
Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014); Moff v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004).
Applicable Law
Section 21.11 of the penal code provides in relevant part that "[a] person commits an offense if, with a child younger than 17 years of age, . . . the person . . . engages in sexual contact with the child." The statute defines "sexual contact" to include "any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child" as long as the touching is "committed with the intent to arouse or gratify the sexual desire of any person." While Appellant focuses on the specific dates of October 1, 2013 and January 14, 2014, time is not usually a material element of an offense and definitely is not in the case of indecency with a child by contact. The "on or about" language allowed the State to prove any date before the presentment of the indictment and within the statutory limitation period of the offense. There is no statute of limitations for indecency with a child.
Tex. Penal Code Ann. § 21.11(a)(1) (West 2011).
Id. § 21.11(c)(1).
See Garcia v. State, 981 S.W.2d 683, 686 (Tex. Crim. App. 1998).
Tex. Penal Code Ann. § 21.11(a)(1); Gutierrez v. State, No. 02-16-00005-CR, 2016 WL 5957023, at *2 (Tex. App.—Oct. 13, 2016, no pet. h.) (mem. op. on reh'g, not designated for publication).
Sledge v. State, 953 S.W.2d 253, 255-56 (Tex. Crim. App. 1997).
Tex. Code Crim. Proc. Ann. art. 12.01(1)(E) (West Supp. 2016); Gutierrez, 2016 WL 5957023, at *2.
The Evidence of Indecency With a Child by Contact
S.R., who was ten years old at trial, testified that her family had lived in Appellant's home a year earlier when she was in the fourth grade. She stated that he liked the children to call him Parquitas. S.R. told the jury that when her parents were not home, Appellant started touching her "parts" and her "middle part" in October of her fourth grade year. She explained that "the middle part" was also called the "wee-wee" and that she used it to urinate. S.R. stated that the sexual abuse began when K.R. would go to Appellant's bedroom and S.R. would follow her. S.R. testified that Appellant gave her Takis (spicy chips) in his room. She said that he touched her "wee-wee" with his hand over her clothes; then he would smell his hand and say, "It smells good." S.R. testified that it happened more than ten times after Halloween but before Thanksgiving.
S.R. testified that she told her brother about the sexual abuse after the first or second occurrence and that he then went to Appellant's bedroom with her each time and witnessed the events. S.R. also testified that K.R. told their parents, maybe in December of that year, but the parents thought she was joking. S.R. stated that she also told two friends at school because they knew how to keep a secret. She further explained that Mother figured out something was going on when she saw S.R. with the "beer salt" that Appellant had given her. The last occurrence happened before that discovery.
S.R. also testified that she saw something happen with K.R. while Appellant and the girls were in Appellant's bedroom. S.R. testified that Appellant would touch K.R. with his hands "[o]n the same part he touched [S.R.]," her "wee-wee," but he did not smell his hand after touching K.R.
K.R., who was six years old and in kindergarten at trial, identified Appellant as the man she knew as Parquitas. She testified that he did "[n]asty things" to the part of her body from which she urinates, under her clothes and with his hand, and she demonstrated by rubbing her thumb to the fingers of her left hand. She further testified that it had happened in the kitchen of Appellant's home, that her parents were at the home, that her family had lived there then but had moved "so nothing else" would "happen to [her]," that it had happened once, and that it had not happened to S.R.
A.R., who was seven years old at trial, testified that Appellant came into the children's room one night near Christmas and touched both S.R. and K.R. as they lay in bed. According to A.R., first Appellant grabbed S.R. and told her to come to his room; she declined. A.R. testified that Appellant then touched the girls on their "parts." A.R. explained that Appellant touched S.R. on her front part and back part and clarified that the front part was "[w]here she . . . pees from." A.R. testified that Appellant touched S.R. on top of the bed covers as she lay under them. A.R. also testified that Appellant touched K.R., who was asleep, on her front part; Appellant touched above the covers as she lay under them.
A.R. said that the incident made him feel bad and that he told his parents the next day that it had happened, but "[t]hey didn't tell [him] to tell them about it."
Mother testified that she left the children at home with Appellant only about eight times each month in December 2013 and January 2014. She stated that she saw S.R. with the salt in January 2014 and asked her directly if someone had been touching her. Mother testified that S.R. denied it at first but then reported that Appellant had touched her "wee-wee," would smell it, and would flavor it. Mother testified that she understood her daughter to be speaking of her vulva when using the term "wee-wee."
After the outcry, Mother called her pastor, and she and the girls met him at McDonalds. Mother then called the police and took the three children to Alliance for Children, and K.R. went to Cook Children's for a sexual assault exam. Mother admitted that Appellant sometimes complained that the children were in his room when she was not at home.
Detective Pat Henz testified that he received the case on January 16, 2014, that the children were interviewed at Alliance for Children on January 28, 2014, and that a sexual assault exam was performed on K.R. on February 10, 2014.
The SANE testified that K.R. told her that "Carpita," identified as Appellant, had touched her underneath her clothes with his hand on her "thing," which is the term that K.R. used to describe her genitalia, but denied penetration.
The forensic interviewer who interviewed K.R. testified that K.R. had told her that "Carpita" had fondled her under her underwear and that he "touched the part where she pees from" and "the part where she poops from" with his hand and that he then "smelled it." The forensic interviewer also testified that K.R. described digital penetration of both the vagina and anus. The forensic interviewer testified that K.R. told her that it happened when Mother had gone to pick the father up from work and that it happened when Appellant was sitting on "his table for eating" and she was standing up.
The forensic interviewer who interviewed S.R. testified that S.R. disclosed sexual abuse, but the forensic interviewer did not provide details.
Appellant told officers that he was occasionally home alone with the children. He stated that sometimes they would wake up and leave their bedroom, and S.R. would come in his bedroom. He also stated that all three of the children were in his bedroom once because they picked the lock to get in. He stated that on another occasion, he pushed them out of the bathroom he was using. He believed that the girls made outcries because he threatened to tell their mother about some misbehavior and threatened to spank them. He said they got the idea from an incident at their school involving a teacher sexually abusing a student. He denied ever being in the children's bedroom but admitted that he had bought S.R. Takis.
The Two Convictions of Indecency by Contact with K.R.
The jury charge questions on Offense One and Offense Three (after the trial court amended the date in Offense Three) both instructed the jury to find Appellant guilty of indecency with a child if they found
from the evidence beyond a reasonable doubt that [Appellant] in Tarrant County, Texas, on or about the 1st day of October, 2013, did then or there intentionally, with the intent to arouse or gratify [his] sexual desire . . . , engage in sexual contact by touching the genitals of [K.R.], a child younger than 17 years of age[.]
Appellant contends, however, that the record clearly shows that K.R. was allegedly touched if at all, only once, according to her testimony and that of various professionals. Further, the State concedes that the evidence is insufficient to support the conviction against K.R. on Offense Three because (1) K.R. testified that Appellant touched her genitals only one time and (2) there was evidence of anal contact but the State failed to allege a charge of indecency of a child based on anal contact in the indictment and jury charge.
K.R.'s testimony recounting the single time that she claimed Appellant sexually abused her and her siblings' testimony describing other episodes they had witnessed—A.R. testified that Appellant had fondled K.R.'s genitals in the children's bedroom as she lay under the covers, and S.R. testified that Appellant fondled K.R.'s genitals in his bedroom in the same episode or episodes in which he fondled S.R.—would appear to sufficiently support Appellant's convictions for Offense One and Offense Three.
But Appellant also complains in his brief that
• "the court and the lawyers resurrected by agreement a second lesser included offense against K.R.";
• "[t]he court had already accepted the waiver of all counts except the primary indictment count with the attendant lesser included offenses, so the jury could not have considered this paragraph as a separate count";
• the State was permitted "to obtain a conviction either based on the lesser-included offense of indecency with a child from count one and/or the alleged separate offense of indecency with a child from Offense 3 on the same victim";
• the trial court "unfairly expedited a guilty verdict for a non-existing offense"; and
• "at least with regard to the counts concerning K.R., the verdict should be reversed and a judgment of acquittal rendered on at least one of the counts because the dates and the circumstances do not even closely resemble the State's pleadings."
We agree with the parties that only the first conviction regarding K.R. can stand, and we believe that Appellant's reasoning, liberally construed, logically leads to ours. That is, we believe that Appellant's complaints about the two convictions regarding K.R. fairly include a complaint that the one-conviction-per-count rule was violated. The State waived all counts but one in the indictment. Because there was only one count, there should have been only one conviction. Permitting more convictions than authorized by the law violated Appellant's constitutional rights to notice and grand jury screening. There was nothing wrong with the jury charge giving the jury the opportunity to render a verdict on each lesser included offense of Count One, the only live count, but when the trial judge received the verdicts,
See Tex. R. App. P. 38.1(f).
Martinez v. State, 225 S.W.3d 550, 554-55 (Tex. Crim. App. 2007); Shavers v. State, 881 S.W.2d 67, 74-75 (Tex. App.—Dallas 1994, no pet.).
Martinez, 225 S.W.3d at 554-55.
he should [have] perform[ed] the task of deciding what judgment [was] authorized by those verdicts in light of the controlling law, the indictment, and the evidence presented at trial. In this case, the trial judge did not perform that task. He should have realized that the [three] verdicts of the jury had the legal effect of authorizing only [one] judgment of conviction, because the law does not permit more than one conviction per count in the indictment.Both convictions regarding K.R. were accorded the same ten-year sentence, but the trial court stacked the sentence imposed for Offense Two onto the sentence imposed for Offense One. We therefore hold the evidence sufficient to support Appellant's conviction for Offense One, but we vacate the trial court's judgment of conviction and sentence for Offense Three and dismiss that charge. We address Appellant's remaining issues only as they pertain to Offenses One and Two.
Id. at 555.
See id.; see also Barron v. State, No. 03-11-00519-CR, 2013 WL 3929121, at *2-3 (Tex. App.—Austin July 26, 2013, no pet.) (mem. op., not designated for publication) (affirming conviction for offense with greatest sentence assessed).
The Conviction of Indecency by Contact With S.R.
Other than sufficiency, Appellant did not raise any similar complaints regarding his conviction for Offense Two, and therefore we are not prepared to raise the violation of the one-conviction-per-count rule sua sponte or to vacate the conviction and sentence for Offense Two on our own volition.
See Owens v. State, 851 S.W.2d 398, 401 (Tex. App.—Fort Worth 1993, no pet.).
Instead, based on the appropriate standard of review, we hold that the evidence is sufficient to support Appellant's conviction for Offense Two. The jury was charged,
Now, if you find from the evidence beyond a reasonable doubt that [Appellant], . . . on or about the 1st day of October, 2013, did then or there intentionally, with the intent to arouse or gratify [his] sexual desire . . . , engage in sexual contact by touching the genitals of [S.R.], a child younger than 17 years of age, then you will find [him] guilty of the offense of indecency with a child.
The jury heard evidence that Appellant had touched S.R.'s genitals over her clothes, smelled his fingers, and stated that they smelled good. That is sufficient evidence to support his conviction of Offense Two for committing indecency of a child by contact of S.R.
Accordingly, we hold that the evidence is sufficient to support Appellant's convictions for Offense One and Offense Two, but we vacate his conviction and sentence for Offense Three and dismiss that charge.
Competence of Children to Testify
In the remainder of his third issue, Appellant contends that the trial court abused its discretion by determining that K.R. and A.R. were competent to testify. Appellant does not challenge S.R.'s competence to testify. Further, Appellant did not object to the trial court's ruling on A.R.'s competence to testify in the trial court. He has therefore forfeited that complaint. The issue remaining is whether the trial court abused its discretion by determining that K.R. was competent to testify. A trial court does not abuse its discretion if it acts within the zone of reasonable disagreement.
See Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1461 (2016); Sanchez v. State, 418 S.W.3d 302, 306 (Tex. App.—Fort Worth 2013, pet. ref'd); see also De Los Santos v. State, 219 S.W.3d 71, 80 (Tex. App.—San Antonio 2006, no pet.).
See Broussard v. State, 910 S.W.2d 952, 960 (Tex. Crim. App. 1995), cert. denied, 519 U.S. 826 (1996).
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g); Torres v. State, 424 S.W.3d 245, 254 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd).
As this court recently explained,
We review the child's responses to qualification questions as well as the child's entire testimony to determine whether the trial court's ruling constituted an abuse of discretion.Establishing the child witness's incompetence to testify is the responsibility of the party moving to exclude her testimony. Further, "[c]onfusing and inconsistent responses from a child are not reasons to determine she is incompetent to testify; rather, they speak to the credibility of her testimony." The trial court's role is to determine competence, not to assess the weight or credibility of the child's testimony.
All witnesses are presumed competent to testify, including children. When competency is challenged, however, the trial court must make a determination of whether the child (1) had the ability to intelligently observe the events in question at the time of the occurrence and (2) has the capacity to recollect and narrate the events. A witness has the capacity to narrate if the witness is able to understand the questions asked, frame intelligent answers to those questions, and understand the moral responsibility to tell the truth.
Gonzalez v. State, No. 02-14-00229-CR, 2015 WL 9244986, at *3 (Tex. App.—Fort Worth Dec. 17, 2015, pet. ref'd) (mem. op., not designated for publication) (citations omitted), cert. denied, 137 S. Ct. 169 (2016).
Id. (citing Gilley v. State, 418 S.W.3d 114, 121 (Tex. Crim. App.), cert. denied, 135 S. Ct. 57 (2014)).
In re A.W., 147 S.W.3d 632, 635 (Tex. App.—San Antonio 2004, no pet.); Gonzalez, 2015 WL 9244986, at *6.
A.W., 147 S.W.3d at 635.
While Appellant concedes that six-year-old K.R. was able to name her siblings and her teacher, could count to twenty in English and Spanish, and could identify the basic color groups, he argues,
In every other matter, her testimony was a hodgepodge of non-sequiturs, forgetfulness, or lack of understanding. She was unable to remember her birthday, the month in which Christmas falls, the name of her school, the number of children in her class, the city in which she lived, the name of the street she lived on, the place where she had lived before that, and the very purpose for her presence in the courtroom. This last point is very disturbing, because it might be expected that the prosecutor or the victim's assistance personnel would have prepared the child for the courtroom. Yet, after all that preparation K.R. could not recall why she was in the courtroom:
THE COURT: Do you know why people asked you to come to court today?
THE WITNESS: I forgot.
THE COURT: Do you know when you come into court, people ask you questions, kind of like I do? That's our job. We ask questions. We get paid to ask questions. That's our job. Okay? Did you know that?
THE WITNESS: I didn't say it. [record citations omitted]
Appellant also points out K.R.'s inability to recognize people in the courtroom and to properly identify them and her multiple "I forgot" answers when testifying about the alleged offense.
But K.R. demonstrated in the hearing and at trial that she knew the difference between the truth and a lie by stating that the trial judge would be telling a lie if he said her purple dress was green. She also testified in the hearing that she was there to answer questions about "the young man d[oing] nasty things to [her]." Before the jury, K.R. identified Appellant as the man she knew as Parquitas. She testified that he did "nasty things" to her genital area with his hand, and she demonstrated by rubbing the thumb and fingers of her left hand together. She further testified that it had happened in his kitchen, when she lived there, and that it happened one time.
As the trial judge pointed out, this case was hampered by "an ongoing with-interpreter-double-translation process," and he was present "to personally evaluate the child and her responses." Further, any confusion in K.R.'s answers goes to the weight and credibility of her testimony, not her competence to testify. Accordingly, based on our review of her testimony at the hearing as well as her testimony before the jury, we hold that Appellant did not overcome the presumption that K.R. was competent to testify and that the trial court did not abuse its discretion by deciding that she was competent to testify. We overrule the remainder of Appellant's third issue.
Id.
See id.
The Jury Charge
Appellant's first two issues complain of the trial court's amending the jury charge after closing argument. In his first issue, Appellant contends that the trial court reversibly erred by amending the jury charge after argument had concluded, violating article 36.16 of the code of criminal procedure. Appellant recognizes that trial counsel acquiesced to the jury charge. The State contends that Appellant's first issue is moot because the evidence is insufficient to prove the "Offense Three" conviction of indecency with a child with K.R. as the complainant. We did vacate that conviction, albeit on alternate grounds, but if we were to sustain the first issue, Appellant would receive a new trial (excluding the dismissed Offense Three conviction). We therefore address both issues as they relate to Offense One and Offense Two.
The State explained the three lesser included offenses charged (Offense One, Offense Two, and Offense Three) in its closing argument,
Ladies and gentlemen of the jury, the verdict form on continuous, we've done it. We've proved it beyond a reasonable doubt. You stop right here. What I want to talk to you about is the verdict forms after this, why they do mean something.
. . . .
And those acts that were discussed in the charge under continuous sexual abuse of a child make up the lesser offenses that start with Offense One. And that lesser offense for Offense One has to do with [K.R.]. When [she] outcried to Charity Henry that [Appellant] put his hands in her pants, put his hands next to her skin, while he's sitting on a table he put his finger in the hole. That's aggravated sexual assault of a child. Okay? Now, an offense less than that would be if he had just touched her genitals and that one time that [K.R.] talked about. It's that simple for Offense One.
Now, Offense Two deals with [S.R]. And there's a lot with [her], from the end of October all the way until the day before her mother finds her with those lime salts, all that time. You heard about how many times it happened. You heard about what [Appellant] did, the touching of her genitals over the clothes, over and over and over again. You heard the testimony about the grooming, the Takis, the salt, all of those go into Offense Two, all of those times she suffered at his hand.
Now, Offense Three—and including Offense Two is when [A.R.] was in bed and saw the Defendant touch [S.R.] over the covers. That's indecency with a child by contact, and that's what gets us to Offense Three which is indecency with a child, with [K.R.] when she's underneath the covers, not when she's talking about
when she was in the kitchen and the Defendant was sitting on the table, great sensory details, peripheral details. Now we're talking about when [A.R.] sat there and saw the door open. And he told the defense attorney when the defense attorney asked him, How did you know it happened?
I saw it with my own eyes. I saw what he did to my sisters. And the defense attorney went after him, You mean you saw him as he leaned over your sister and leaned over you to touch [K.R.]? [A.R.], brave kid as he was, looked at him and said, Yes, because it happened because I saw it.
. . . .
We have proven to you beyond a reasonable doubt that this defendant victimized these girls, that he touched them, that he committed two or more acts of sexual abuse outside of the 30-day period. It started in October and it ended when [K.R.] (sic) was found with the salts. And you know it because it happened to [S.R.] ten times. You know it because it happened to [K.R]. And you know it because [A.R.] told you he saw it with his two eyes. So you're going to take this verdict form, and it's on page ten, and you're going to do what's right and just sign the bottom one and you're going to hold him accountable for what he did[.]
The original jury charge charged the jury on continuous sexual abuse of a young child and then provided,
Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof or if you are unable to agree, then you will next consider whether he is guilty of any of the following offenses.
Offense 1
Now, if you find from the evidence beyond a reasonable doubt that [Appellant], . . . on or about the 1st day of October, 2013, did then or there intentionally or knowingly cause the penetration of the female sexual organ of [K.R.], a child younger than 14 years of age, by inserting his finger into the sexual organ of [K.R.], then you will find [him] guilty of the offense aggravated assault of a child.
Unless you so find from the evidence beyond reasonable doubt, or if you have a reasonable doubt thereof, or if you are unable to agree, you will next consider whether [Appellant] is guilty or not guilty of the offense of indecency with a child.
Now, if you find from the evidence beyond a reasonable doubt that [Appellant], . . . on or about the 1st day of October, 2013, did then or there intentionally, with the intent to arouse or gratify [his] sexual desire . . . , engage in sexual contact by touching the genitals of [K.R.], a child younger than 17 years of age, then you will find [him] guilty of the offense of indecency with a child.
Unless you so find from the evidence beyond reasonable doubt, or if you have a reasonable doubt thereof, you will acquit [Appellant] and say by your verdict "Not Guilty" of this offense.
Offense 2
Now, if you find from the evidence beyond a reasonable doubt that [Appellant], . . . on or about the 1st day of October, 2013, did then or there intentionally, with the intent to arouse or gratify [his] sexual desire . . . , engage in sexual contact by touching the genitals of [S.R.], a child younger than 17 years of age, then you will find [him] guilty of the offense of indecency with a child.
Unless you so find from the evidence beyond reasonable doubt, or if you have a reasonable doubt thereof, you will acquit [Appellant] and say by your verdict "Not Guilty" of this offense.
Offense 3
Now, if you find from the evidence beyond a reasonable doubt that [Appellant], . . . on or about the 14th day of January, 2014, did then or there intentionally, with the intent to arouse or gratify [his] sexual desire . . . , engage in sexual contact by touching the genitals of [K.R.], a child younger than 17 years of age, then you will find [him] guilty of the offense of indecency with a child.
The verdict forms for the lesser included offense charges were labeled "(Offense 1)," "(Offense 2)," and "(Offense 3)."
The prosecutor, defense counsel, and Appellant all signed an agreement providing that if the jury wrote "a note requesting any information from the" trial court, the trial court could "send its answer to the jury room for the jury," after giving the parties a chance to object to the responses, without bringing the jury into open court. Excluding the jury's note indicating that it had reached a verdict, the jury sent out four notes during its deliberations. In open court but outside the presence of the jury, the trial court summarized all the notes and the trial court's responses to them. The first note requested copies of the jury charge. The second note asked, "Why does Page 11 state 'offense of indecency with a child' for Offense 1 which conflicts with Page 5 which states 'offense of aggravated sexual assault'"? The trial court responded by directing the jury to "read the entire charge concerning 'Offense 1' on pages five and six of the charge."
The jury's third note stated, "Page 7 refers to [K.R.] under Offense 3 Jan[.] 14. Page 5 refers to [K.R.] under Offense 1 Oct[.] 1. Didn't [S.R.] testify to the 10X over this period, not [K.R.]"? The trial court explained its actions in response to the jury's third note,
We reviewed the charge and realized not having corrected part of the original, there was a misdate of January 14th. It should have said October 1st. With the permission in the presence of counsel, the original charge was retrieved and I handwrote and corrected the October 1st date of January 14th. It was a typo. The correct date was placed on the charge which was returned to the jury and they were advised to correct all of their 11 copies to reflect the accurate date that apparently was a computer glitch. . . .
The jury's fourth note asked, "What is the difference please between Offense 1, Part 2, indecency with a child and Offense 3, indecency with a child because the specific child named in both is [K.R.]"? The trial court responded, "Offense 1, 'Part 2', is a lesser accusation to Offense 1, 'Part 1.' Offense 3 is a separate charge."
At the end of the trial court's explanation of all the notes and the responses, the trial court asked defense counsel if he "agree[d] with the short historical summary concerning the notes and the answers," and defense counsel stated that he did.
Article 36.16 of the code of criminal procedure provides,
After the judge shall have received the objections to his main charge, together with any special charges offered, he may make such changes in his main charge as he may deem proper, and the defendant or his counsel shall have the opportunity to present their objections thereto and in the same manner as is provided in Article 36.15, and thereupon the judge shall read his charge to the jury as finally written, together with any special charges given, and no further exception or objection shall be required of the defendant in order to preserve any objections or exceptions theretofore made. After the argument begins no further charge shall be given to the jury unless required by the improper argument of counsel or the request of the jury, or unless the judge shall, in his discretion, permit the introduction of other testimony, and in the event of such further charge, the defendant or his counsel shall have the right to present objections in the same manner as is prescribed in Article 36.15. The failure of the court to give the defendant or his counsel a reasonable time to examine the charge and specify the ground of objection shall be subject to review either in the trial court or in the appellate court.In addition to the exceptions listed in the statute, courts have interpreted the statute to allow a trial court to withdraw and correct its charge if convinced that an erroneous charge has been given.
Tex. Code Crim. Proc. Ann. art. 36.16 (West 2006) (emphasis added).
Smith v. State, 898 S.W.2d 838, 855 (Tex. Crim. App.), cert. denied, 516 U.S. 843 (1995); Black v. State, Nos. 03-95-00740-CR, 03-95-00741-CR, 1997 WL 217145, at *1 (Tex. App.—Austin May 1, 1997, no pet.) (not designated for publication).
"[A]ll alleged jury-charge error must be considered on appellate review regardless of preservation in the trial court." In our review of a jury charge, we first determine whether error occurred; if error did not occur, our analysis ends. If error occurred, whether it was preserved determines the degree of harm required for reversal. Unpreserved charge error warrants reversal only when the error resulted in egregious harm. The appropriate inquiry for egregious harm is fact specific and must be performed on a case-by-case basis.
Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).
Id.
Id.
Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g); see Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006).
Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013); Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).
In making an egregious harm determination, "the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Errors that result in egregious harm are those "that affect the very basis of the case, deprive the defendant of a valuable right, vitally affect the defensive theory, or make a case for conviction clearly and significantly more persuasive." The purpose of this review is to illuminate the actual, not just theoretical, harm to the accused.
Almanza, 686 S.W.2d at 171; See generally Gelinas, 398 S.W.3d at 708-10 (applying Almanza).
Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at 172).
Almanza, 686 S.W.2d at 174.
Appellant's arguments in his first issue rest on his theory that the evidence showed that only one instance of conduct amounting to indecency by contact with her sexual organ, if any, occurred to K.R. and his contention that the "on or about" date, whether October 1 or January 14, is an element of the offense. It is not. As we stated earlier, the State is not required to allege a specific date in an indictment; the "on or about" language allows the State to prove any date before the presentment of the indictment. Even if the trial court erred by changing the "on or about" date in the charge for Offense Three, which we do not hold, that change had no legal effect because any time before the indictment was presented was fair game, and at least three different occurrences of Appellant contacting K.R.'s sexual organ were described by the children's testimony alone. The jury heard evidence of at least three separate incidents involving K.R.—one in the kitchen, one in the children's bed, and at least one in Appellant's bedroom. We therefore conclude that error, if any was harmless as to Appellant's convictions and sentences for Offense One and Offense Two. We overrule Appellant's first issue.
See Tex. Penal Code Ann. § 21.11(a)(1).
Sledge, 953 S.W.2d at 255-56.
See id.; see also Cabral v. State, 170 S.W.3d 761, 764-65 (Tex. App.—Fort Worth 2005, pet. ref'd).
See Marshall v. State, 479 S.W.3d 840, 843-44 (Tex. Crim. App. 2016).
In his second issue, Appellant contends that by amending the charge, the trial court commented on the weight of the evidence. Because evidence supported the Offense One conviction involving K.R. as the complainant and because the specific date named in the charge had no legal effect, as the "on or about" language allowed the State to prove any date before the presentment of the indictment, we hold that any error the trial court committed by replacing the date of January 14, 2014 with the date of October 1, 2013 in the Offense Three charge would be harmless as to Appellant's convictions and sentences for Offense One and Offense Two. We overrule Appellant's second issue.
Sledge, 953 S.W.2d at 255-56.
See Marshall, 479 S.W.3d at 843-44.
Ineffective Assistance
Appellant raises the specter of ineffective assistance at least twice in his brief, stating, "It might be noted that trial counsel's failure to object and his acquiescence to the change in the charge was arguably ineffective assistance of counsel" and "putting aside any ineffective assistance issues" before arguing different points. But Appellant does not develop an argument for ineffective assistance at all. To the extent that ineffective assistance was raised as an issue, we overrule it as inadequately briefed.
See Tex. R. App. P. 38.1(i); Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011) (citing cases), cert. denied, 132 S. Ct. 2712 (2012). --------
Conclusion
Having held that the trial court erred by allowing two convictions regarding K.R. when there was only one live count, we vacate the trial court's judgment for Offense Three and dismiss that charge. Having overruled the remainder of Appellant's three issues, we affirm the trial court's judgments for Offense One and Offense Two.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ. GABRIEL, J., concurs without opinion. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: December 8, 2016