Opinion
No. 06-20-00035-CR
11-13-2020
ELBERT LUKE EVANS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 6th District Court Lamar County, Texas
Trial Court No. 28251 Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
Following a jury trial, Elbert Luke Evans was found guilty of one count of continuous sexual abuse of a young child and was sentenced to life in prison. Evans appeals, maintaining that the evidence was legally insufficient to support the jury's verdict finding him guilty, that the judgment erroneously contained a fine, that the State's indictment against him was defective, that the trial court's jury instructions did not contain a culpability requirement, and that the abstract portion of the trial court's jury instructions and the application portion of the instructions differed in defining aggravated sexual assault of a child. We modify the judgment and affirm it, as modified, because (1) legally sufficient evidence supports Evans's conviction, (2) Evans's complaint regarding the indictment is unpreserved, (3) the jury was not erroneously charged on mens rea, (4) the jury was not erroneously charged on underlying acts of aggravated sexual assault, and (5) the judgment improperly contained a $100.00 fine.
(1) Legally Sufficient Evidence Supports Evans's Conviction
Evans maintains that there was legally insufficient evidence to support the jury's guilty verdict of continuous sexual abuse of a child because there was no evidence of one of the seven underlying alleged acts forming the basis of the continuous sexual abuse allegation. Specifically, Evans contends there was insufficient evidence to prove that he penetrated E.E.'s sexual organ with his sexual organ. According to Evans, the jury could have erroneously found him guilty based on Evans penetrating E.E.'s vagina with his penis.
Except for Evans, we use initials or pseudonyms to protect the children's identities. See TEX. R. APP. P. 9.8.
"In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt." Williamson v. State, 589 S.W.3d 292, 297 (Tex. App.—Texarkana 2019, pet. ref'd) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.); Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref'd)). We must examine legal sufficiency pursuant to the Brooks opinion, while giving deference to the responsibility of the jury "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). In drawing reasonable inferences, the trier of fact "may use common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life." Duren v. State, 87 S.W.3d 719, 724 (Tex. App.—Texarkana 2002, pet. struck) (citing Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (Meyers, J., concurring)). As the trier of fact, the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony and may "believe all of a witnesses' testimony, portions of it, or none of it." Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App. 2014). We give "almost complete deference to a jury's decision when that decision is based on an evaluation of credibility." Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
Here, Count I of the State's indictment tracked the language contained in Section 21.02 of the Texas Penal Code, alleging that, during a thirty-day period or more, Evans committed several different acts of sexual abuse against E.E., that is, (1) penetration of E.E.'s vagina with Evans's tongue; (2) penetration of E.E.'s vagina with Evans's penis; (3) penetration of E.E.'s vagina with Evans's finger; (4) penetration of E.E.'s anus with Evans's penis; (5) again, penetration of E.E.'s vagina with Evans's penis; and (6) again, penetration of E.E.'s vagina with Evans's tongue.
Section 21.02 states that a person commits the offense of continuous sexual abuse of a child when
(1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts are committed against one or more victims; andTEX. PENAL CODE ANN. § 21.02(b).
(2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age, regardless of whether the actor knows the age of the victim at the time of the offense.
Also charging Evans with seven counts of aggravated sexual assault of a child, the State alleged in Count II, that on or about December 1, 2015, Evans intentionally or knowingly penetrated E.E.'s vagina with his tongue when she was younger than fourteen years of age; in Count III, that, on or about March 1, 2016, Evans intentionally or knowingly penetrated E.E.'s vagina with his penis; in Count IV, that, on or about October 1, 2016, Evans intentionally or knowingly penetrated E.E.'s vagina with his finger; in Count V, that on or about March 1, 2017, Evans intentionally or knowingly penetrated E.E.'s anus with his penis; in Count VI, that, on or about October 1, 2017, Evans intentionally or knowingly penetrated E.E.'s vagina with his tongue; in Counts VII, and VIII, that, on or about October 30, 2018, Evans intentionally or knowingly penetrated E.E.'s vagina with his tongue. Evans pled not guilty to all counts. The jury found Evans guilty of Count I, continuous sexual abuse of a young child. Because it found Evans guilty of Count I, the trial court instructed the jury not to consider Counts II through VIII.
Contrary to Evans's assertion, several of our sister courts have held that
the acts of sexual abuse listed in the statute are not elements of the offense; instead, the element of the offense on which jury unanimity is required is the "commission of two or more acts of sexual abuse over a specified time period—that is, the pattern of behavior or the series of acts[.]"Holton v. State, 487 S.W.3d 600, 606 (Tex. App.—El Paso 2015, no pet.) (citing Pollock v. State, 405 S.W.3d 396, 405 (Tex. App.—Fort Worth 2013, no pet.); Casey v. State, 349 S.W.3d 825, 829 (Tex. App.—El Paso 2011, pet. ref'd) (continuous sexual abuse statute criminalizes series of acts, rather than individual acts themselves; the series being key element of offense); McMillan v. State, 388 S.W.3d 866, 872 (Tex. App.—Houston [14th] Dist. 2012, no pet.) (citing cases concluding that series of acts is key element of offense on which jury unanimity is required)). "The 'series' itself is the key 'element' of the offense on which jury unanimity is required; the individual acts of sexual abuse enumerated in the statute are simply the 'manner and means' by which the series is committed." Holton, 487 S.W.3d at 606-07.
Moreover, Section 21.02 expressly provides,
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. The jurors must agree unanimously that the defendant, during a period that is 30 days or more in duration, committed two or more acts of sexual abuse.TEX. PENAL CODE ANN. § 21.02(d). Thus, when there is evidence of two or more acts over a specified period, "the jurors need not agree as to which individual acts were committed as long as they agree that the defendant committed at least two." Jacobsen v. State, 325 S.W.3d 733, 737 (Tex. App.—Austin 2010, no pet.).
The trial court's jury charge included the following instruction:
As to Count One of the Indictment[,continuous sexual abuse of a young child], you are instructed that members of the jury are not required to agree unanimously on which specific acts of sexual abuse, if any, were committed by the Defendant or the exact date when those acts were committed, if any. The jury must agree unanimously that the Defendant, during a period of thirty (30) or more days in duration committed two or more acts of sexual abuse as that term has been previously defined.
E.E., an eleven-year-old girl, testified that she lived in a family setting with Evans. E.E. explained that her mother worked most evenings and that Evans usually tucked the children into bed. E.E. said that she was seven or eight years old when Evans first assaulted her and that the assault happened in her bedroom in 2015 or 2016. Through the drawings she made during her interview at the Children's Advocacy Center (CAC), E.E. explained that Evans had put his penis in her anus. E.E. stated that it hurt when Evans did that. She said that, when he did that, she "froze." E.E. also drew a picture indicating that Evans had asked E.E. if he could see her vagina. E.E. also explained that Evans had put his mouth on her vagina, and when he did, she would just "freeze." She said that he put his tongue on her vagina in 2016, 2017, and 2018.
E.E.'s drawings were admitted into evidence.
On one of the pages, E.E. wrote, "[Evans] almost every day. The bottom one says [older brother] sometimes, which means, like how much times they would ask -- like, in -- you know, like, in the year." E.E. said that Evans tried to put his penis in her mouth and she described it as "[h]airy and dark." She also stated that Evans would force her to put her hand on his penis and then Evans "would shake it" or make "it go[ ] up and down." According to E.E., Evans "touched the inside of [her] private part[]" with his fingers "maybe like two or three" times in 2017.
E.E. said that her older brother had asked her if she would have sex with him but that they never did engage in any kind of sexual contact.
In addition, E.E. testified that the assaults would occur most often in her bedroom, but there were times Evans would assault her in the laundry room or the bathroom. In addition, E.E. stated that her mother was usually at work or was in the kitchen when Evans assaulted her. She also said neither of her brothers ever witnessed Evans assaulting her. E.E. stated that she was not getting her brother confused with Evans. E.E. testified that the last time she could remember Evans assaulting her was in November 2018. E.E. said that Evans assaulted her in 2016, 2017, and 2018.
E.E. said that she wanted to tell her mother what Evans was doing to her but that Evans told E.E. that her mother already knew what he was doing to her. E.E. said, "[B]ut now I have found out that she didn't know so -- "
Angela Bates, a forensic interviewer with the CAC of Paris, Texas, testified that, on December 29, 2018, she conducted a forensic interview with E.E., who was ten years old at the time. According to Bates, E.E. told her that Evans had sexually abused her. Bates said, "She talked about oral sexual abuse. She talked about intercourse. She talked about anal intercourse. She talked about him asking her to perform oral intercourse, him performing oral intercourse on [her], and fondling." Bates said that E.E. was "spontaneous in her disclosure." E.E. told Bates that Evans would come in her bedroom "and ask her if he could see it." When that would happen, E.E. said, "I didn't want to tell [Evans] no, but I didn't really want to do it. . . ." "I didn't tell him no." E.E. told Bates that the assaults usually occurred in her bedroom but that, when her mother was away from home, the assaults took place in the laundry room, pantry, and kitchen.
According to Bates, when the details of the assaults became more graphic, E.E. would draw pictures of what had taken place. While indicating to what E.E. referred to as her "PP," E.E. told Bates that "[Evans] would put his fingers in her PP." According to Bates, E.E. talked about Evans "put[ting] his PP in her butt." E.E. also told Bates that her brother asked her to have "sex" with him, but "that never happened." E.E. continued, "But that it happened almost every day with [Evans]." In addition, E.E. drew a picture of Evans with his shirt partially raised and without having his pants on. E.E. also drew a picture of Evans "using his tongue on her P.P." Bates said that E.E. clarified through one of her drawings that Evans would ask her "every day, almost every day" to participate in sexual activities. Bates testified that E.E. told her that the assaults happened every day from the time they had moved to Paris, which had been three years prior. E.E. also said that, throughout the entire time Evans was assaulting her, he told E.E. not to tell her mother. Beyond the testimony of E.E., there is considerably more evidence supporting Evans's conviction.
Kim Basinger, a registered nurse and sexual assault nurse examiner, testified as to the contents of E.E.'s medical records from Reach Clinic at Children's Health in Dallas. According to Bassinger, E.E. was examined by the Reach Clinic on December 11, 2018. Basinger said that E.E.'s records showed that E.E. had disclosed sexual abuse perpetrated by Evans and disclosed oral/genital and genital/anal contact with him. Basinger stated that there was no evidence of trauma to E.E, but she explained, "Because of the time that's lapsed, there could've been an injury and it healed, and it healed so well that the nurse couldn't see it." Basinger said, "That part of our bodies [is] meant to stretch. So it is consistent with the history." According to Basinger, E.E.'s medical results were typical where the child "indicates the abuse had occurred over a period of years," but not in the last thirty days.
On cross-examination, Basinger stated that the report showed that E.E.'s hymen had not been injured. Basinger explained that a severe straddle injury to a ten-year-old could injure the hymen, but that most "typical straddle injuries" would not. Basinger also said that E.E.'s medical records did not indicate the E.E. had any prior tears or bleeding.
Eight-year-old K.E., E.E.'s brother, testified that he had lived in Paris with Evans, along with his mother, one older brother, and two sisters. According to K.E., when he was six or seven years old, Evans put his penis in K.E.'s mouth and his anus. K.E. said that it made him "a lot nervous" when Evans assaulted him and that it did not feel good. K.E. testified that Evans told him not to tell anyone what Evans had done to him but that K.E. eventually told a therapist. K.E. said that he had never told his mother what Evans had done to him. He also stated that it made him feel "happy" to tell the jury what happened and that he felt better after telling them. "I did want to tell because - [Evans] could be doing something to another little boy."
E.E.'s twelve-year-old brother, C.E., testified that he lived with Evans, along with his two sisters and one brother. C.E. was the oldest of the children. C.E. testified that, when people learned of what Evans had done to E.E., it made C.E. feel "[n]ot too good, but [he] also kind of felt like it needed to get out there sometime." C.E. also explained, "[O]ccasionally, like maybe once every three months -- when mom was, like, off at work or in her room taking a nap, [Evans] would come in and ask if we wanted to play together and by that he meant sexual activity." C.E. said that Evans would put his penis in C.E.'s anus and that it had happened on three or four occasions when he was eleven years old. According to C.E., his mother did not know about the assaults because she was either at work or asleep. He also said that Evans told him "to keep it secret." C.E. stated that he felt better after telling the jury what Evans had done to him.
E.E.'s mother testified that she had been married to Evans since 2005. Mom and Evans were divorced in March 2019 after the allegations had been made against Evans. Mom explained that she normally worked in the evenings, from two o'clock in the afternoon until ten o'clock at night. Mom stated that Evans knew her schedule and that, if for some reason she came home early, she would call Evans first. Initially, Mom did not believe the accusations that had been made against Evans, stating, "My initial reaction was disbelief." Mom said she did not have any suspicions that Evans was assaulting her children; however, Mom said that she now believed the children. According to Mom, the children were not living with her currently, but she said she was doing whatever she could to be reunited with them.
Melanie Sutton testified that Evans was her half-brother. As children, Evans and Sutton lived together in Denison, Texas. Sutton stated that she had a "decent" childhood, but that she had "anxiety . . . if [her] parents weren't home, if [she] was home alone with [her] brother and sister, or at nighttime." Sutton recalled an incident when her mother was giving her a bath and Evans "decided he wanted to stand there and watch it happen." Sutton described the incident as being "awkward." She also explained that, during the night, Evans would come into her bedroom and touch her. According to Sutton, when she was seven years old, Evans "would try to put his fingers and his hands down [her] pants." Sutton explained that Evans would touch her vagina with his hands, but she could not recall whether his hands went into her vagina. She said Evans would touch her every chance that he could and that if he had had the opportunity, he would have assaulted her every night. Sutton said the assaults continued until she was around twelve or thirteen "[u]ntil [she] learned [she] could fight back." Sutton stated, "I told him to stop multiple times. I would try to sleep closest to the wall so he wouldn't get to me. I slept in the living room so he wouldn't get to me." According to Sutton, Evans began assaulting her when she was eleven or twelve. Sutton said that if she ever asked Evans to help her with chores, he would tell her, "[Y]ou have to do something for me." Sutton stated that her relationship with her mother was "rocky" because she resented her mother for not helping her when she was younger, and her mother resented her for testifying against Evans.
Margaret Thompson testified that Evans was her children's step uncle. Thompson and her children would visit with family, which included fifteen- or sixteen-year-old Evans. When one of her children was three years old, the child told Thompson that something had happened with Evans. Thompson said that, as a result of what the child told her, "[she] panicked and [she] went home." Thompson subsequently contacted the police and Child Protective Services. After that, the child submitted to a sexual-assault examination. Thompson said that charges were filed against Evans but that "[t]he jury passed on it because [the child] couldn't give a specific date that it happened." According to Thompson, she no longer had a relationship or any interaction with Evans.
Here, from E.E.'s testimony alone, there was sufficient evidence to prove, at the very least, that Evans sexually assaulted E.E. by penetrating her vagina with his tongue two or more times and by penetrating her vagina with his finger two or more times. E.E. testified that Evans put his tongue on her vagina or "licked" her vagina in 2016, 2017, and 2018. Thus, E.E.'s testimony alone was legally sufficient to prove that, at least two, if not more, of the alleged underlying sexual assaults occurred and that those assaults happened at least two or more times during a period in excess of thirty days. See Halbrook v. State, 322 S.W.3d 716, 720 (Tex. App.—Texarkana 2010, no pet.) (citing Ozuna v. State, 199 S.W.3d 601, 606 (Tex. App.— Corpus Christi 2006, no pet.) (citing Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978))). Moreover, Bates's testimony corroborated much of E.E.'s testimony in that regard.
In sum, there was no requirement that the State prove each of the underlying offenses in order for the jury to find Evans guilty of continuous sexual abuse of a young child; instead, it was required to prove a series of acts amounting to a pattern of sexual abuse. Based on the record, there was legally sufficient evidence for the jury to have found that Evans committed at least two separate acts of sexual abuse against E.E. during a period of thirty or more days, as required to support a conviction for continuous sexual abuse of a child.
Evans does not claim that there was insufficient evidence to prove any of the other elements of the offense of continuous sexual abuse of a child.
We overrule this point of error.
(2) Evans's Complaint Regarding the Indictment Is Unpreserved
Evans also complains that the State's indictment did not contain a culpability allegation for the offense of continuous sexual abuse of a young child and that the underlying offenses of aggravated sexual assault did not provide the necessary culpability.
Section 21.02 of the Texas Penal Code states that a person commits the offense of continuous sexual abuse of a young child if,
(1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; andTEX. PENAL CODE ANN. § 21.02(b). This portion of the statute requires no additional mens rea because an "act of sexual abuse" under Section 21.02 "means any act that is a violation of one or more of the [listed] penal laws," including aggravated sexual assault of a child. TEX. PENAL CODE ANN. § 21.02(c). As a result, "Section 21.02 . . . is defined in terms of other acts that by their terms require a culpable mental state" and "need not prescribe some additional mental state because its [criminalized act] is merely the repeated commission of acts already requiring culpable mental states." Lane v. State, 357 S.W.3d 770, 776 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd).
(2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age, regardless of whether the actor knows the age of the victim at the time of the offense.
Regardless, Evans contends that the State's indictment against him was fundamentally defective because it did not specify any level of mens rea for the offense of continuous sexual abuse of a child or for any underlying offense. In response, the State contends that Evans complains of a defect in form or substance, which was required to be raised below. We agree with the State.
Article 1.14(b) of the Texas Code of Criminal Procedure states,
If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding.TEX. CODE CRIM. PROC. ANN. art. 1.14(b).
Here, the State's indictment alleged that Evans was charged with continuous sexual abuse of a child, correctly referred to Section 21.02 of the Texas Penal Code as the statute of offense, and listed several predicate offenses of aggravated sexual assault of a child. Evans's argument is not that the indictment was so defective that it failed to allege the crime of continuous sexual abuse of a child—it is only that the indictment failed to allege a mens rea.
This Court has previously rejected the argument that a failure to allege a mens rea constitutes a fundamental defect. Piland v. State, 453 S.W.3d 473, 479-80 (Tex. App.—Texarkana 2014, pet. ref'd). This is so because the "omission of an element of the offense . . . does not prevent the instrument from being an information." Smith v. State, 494 S.W.3d 243, 247 (Tex. App.—Texarkana 2015, no pet.) ("Because the information is sufficient to identify the penal statute under which the State intends to prosecute, the error is not a 'fundamental' error.") (quoting Mantooth v. State, 269 S.W.3d 68, 72 (Tex. App.—Texarkana 2008, no pet.)); see also Studer v. State, 799 S.W.2d 263, 272 (Tex. Crim. App. 1990) ("The language in Art. V., § 12 [of the Texas Constitution], 'charging a person with the commission of an offense,' does not mean . . . that each element of the offense must be alleged in order to have an indictment or information as contemplated by Article V, § 12.").
Consequently, Evans "was required to assert any objection 'to any defect, error, or irregularity of form or substance in [the] indictment' before trial," and the omission of a mens rea was such a defect. Nguyen v. State, 506 S.W.3d 69, 78 (Tex. App.—Texarkana 2016, pet. ref'd) (quoting TEX. CODE CRIM. PROC. ANN. art. 1.14(b)). Because he failed to raise the issue below, Evans did not preserve the complaint he now asserts for the first time on appeal.
Accordingly, we overrule this point of error.
(3) The Jury Was Not Erroneously Charged on Mens Rea
In two points of error, addressed in this, and the next, point, Evans complains of the trial court jury charge. "We employ a two-step process in our review of alleged jury charge error." Murrieta v. State, 578 S.W.3d 552, 554 (Tex. App.—Texarkana 2019, no pet.) (citing Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994)). "Initially, we determine whether error occurred and then evaluate whether sufficient harm resulted from the error to require reversal." Id. (quoting Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abnor, 871 S.W.2d at 731-32)).
The level of harm that must be shown as having resulted from an erroneous jury instruction depends on whether the appellant properly objected to the error at trial. Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994). When a proper objection is made at trial, reversal is required if there is "some harm" "calculated to injure the rights of defendant." Id.; see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). But, when the defendant fails to object to the charge, we will not reverse for jury-charge error unless the record shows "egregious harm" to the defendant. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005) (citing Almanza, 686 S.W.2d at 171); see also Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004). In determining whether error is egregious harm, we must decide whether the error created such harm that the appellant did not have a "fair and impartial trial." TEX. CODE CRIM. PROC. ANN. art. 36.19; see Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008); Almanza, 686 S.W.2d at 171. "Neither the State nor the defendant has a burden to prove harm." Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).
"[T]o preserve error relating to a jury charge, there must either be an objection or a requested charge." Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App. 1996). However, "[p]reservation of charge error does not become an issue until we assess harm." Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005 (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)).
As always, "the jury is the exclusive judge of the facts, but it is bound to receive the law from the court and be governed thereby." TEX. CODE CRIM. PROC. ANN. art. 36.13. A trial court must submit a charge "setting forth the law applicable to the case." TEX. CODE CRIM. PROC. ANN. art. 36.14. "The purpose of the jury charge . . . is to inform the jury of the applicable law and guide them in its application." Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007). "It is not the function of the charge merely to avoid misleading or confusing the jury; it is the function of the charge to lead and prevent confusion." Id.
Evans first maintains that the jury charge was erroneous because it did not contain a culpability requirement for continuous sexual abuse of a child in either the definition section or the application portion. We disagree.
As we have already discussed, Section 21.02 requires no additional mens rea, because an "act of sexual abuse" under that section "means any act that is a violation of one or more of the [listed] penal laws," including aggravated sexual assault of a child. See TEX. PENAL CODE ANN. § 21.02(c). As a result, "Section 21.02 . . . is defined in terms of other acts that by their terms require a culpable mental state" and "need not prescribe some additional mental state because its [criminalized act] is merely the repeated commission of acts already requiring culpable mental states." Lane, 357 S.W.3d at 776.
In this case, the State alleged, and the jury was charged on, seven counts of aggravated sexual assault of a child and continuous sexual abuse of a young child. The trial court's abstract portion of the jury charge contained the following definition:
Our law provides that a person commits the offense of continuous sexual abuse of a child if, during a period that is thirty (30) days or more in duration, the person commits two (2) or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims and, at the time of the commission of each of the acts of sexual abuse, the person was seventeen (17) years of age or older and the victim is a child younger than fourteen (14) years of age.Here, the required mens rea was included in the charge because it defined "intentionally" and "knowingly," and it also required the underlying offenses of aggravated sexual assault of a child to be committed intentionally or knowingly. Because the required mens rea was included in the abstract portion of the jury instructions, there was no error in that portion of the charge.
Our law provides that a person commits the offense of aggravated sexual assault of a child if the person, with a child younger than fourteen (14) years of age, intentionally or knowingly causes the contact with or penetration of the sexual organ of a child by any means.
A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
"Act of sexual abuse" means any act that is a violation of the penal law of aggravated sexual assault of a child if committed in a manner other than touching, including through clothing, the breast of a child.
Next, we turn to the application paragraph, which read:
Now, bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt, in Lamar County, Texas, the Defendant, Elbert Luke Evans, did then and there, during a period that was 30 or more days in duration, to-wit: from on or about December 1, 2015[,] through on or about October 30, 2018, when the Defendant was 17 years of age or older, commit two or more acts of sexual abuse against a child younger than 14 years of age, namely: aggravated sexual assault of a child, namely: by causing the penetration of the female sexual organ of [E.E.] with the Defendant's tongue; and/or aggravated sexual assault of a child, namely: by causing the penetration of the female sexual organ of [E.E.] with the Defendant's male sexual organ; and/or aggravated sexual assault of a child, namely: by causing the penetration of the female sexual organ of [E.E.] with the Defendant's finger; and/or aggravated sexual assault of a child, namely: by causing the anus of [E.E.] to contact the male sexual organ of the Defendant; and/or aggravated sexual assault of a child, namely: by causing the penetration of the female sexual organ of [E.E.] with Defendant's tongue; and/or aggravated sexual assault of a child, namely: by causing the penetration of the female sexual organ of [E.E.] with Defendant's male sexual organ; and/or aggravated sexual assault of a child, namely: by causing the penetration of the female sexual organ of [E.E.] with the Defendant's tongue, then you will find the Defendant Guilty of the offense of Continuous Sexual Abuse of Young Child as charged in the indictment.Again, Evans argues that this paragraph was erroneous because it omitted the required mens rea of intentionally or knowingly.
"When we review a charge for alleged error, we must examine the charge as a whole instead of a series of isolated and unrelated statements." Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). While the application paragraph "'specifies the factual circumstances under which the jury should convict or acquit,' it need not set forth specifically all of the elements necessary to convict a defendant if those elements have been accurately set forth in another section of the charge." Riley v. State, 447 S.W.3d 918, 923 (Tex. App.—Texarkana 2014, pet. ref'd) (quoting Vasquez v. State, 389 S.W.3d 361, 367 (Tex. Crim. App. 2012)). Accordingly, there is no error where the abstract portion of the charge supplies the culpable mental state not specified in the application paragraph. See id. at 923-24 (citing Dinkins, 894 S.W.2d at 339); see also Vasquez v. State, 389 S.W.3d 361, 367 (Tex. App.—Texarkana 2014, pet. ref'd) ("[I]f the application paragraph 'necessarily and unambiguously' refers to another paragraph of the jury charge, then a conviction is authorized, and the trial judge need not sua sponte 'cut and paste' that definition into the application paragraph.").
Here, we have already concluded that the abstract portion of the charge supplied the mens rea element since it instructed the jury that sexual abuse included aggravated sexual assault of a child, specified how aggravated sexual assault of a child occurs, and included the general definition of intentionally or knowingly. The application paragraph further instructed the jury to "bear[ ] in mind the foregoing [abstract] instructions," and then set out the various ways the State was to prove that Evans committed aggravated sexual assault of E.E. by tracking the language of the State's indictment.
Because the abstract portion of the charge supplied the culpable mental state referred to in, but not specifically by, the application paragraph, we conclude that the jury charge was not erroneous when read as a whole.
We overrule this issue.
(4) The Jury Was Not Erroneously Charged on Underlying Acts of Aggravated Sexual Assault
Evans's other challenge to the jury charge complains that the abstract portion of the court's charge defined aggravated sexual assault (of a child) as contact with, or penetration of, only the child's sexual organ. Yet, the application portion of the charge expanded its application to include anal penetration as one of the ways in which Evans could have committed aggravated sexual assault of E.E. According to Evans, the charge was therefore "expressly contradictory" and resulted in egregious harm. We disagree.
Section 22.021(a)(1)(B) of the Texas Penal Code states,
(a) A person commits an offense [of aggravated sexual assault]:
(1) if the person:
. . . .
(B) regardless of whether the person knows the age of the child at the time of the offense, intentionally or knowingly:
TEX. PENAL CODE ANN. § 22.021(a)(1)(B).(i) causes the penetration of the anus or sexual organ of a child by any means;
(ii) causes the penetration of the mouth of a child by the sexual organ of the actor;
(iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;
(iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or
(v) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor.
In this case, the complained-of instruction contained in the abstract portion of the jury charge specifically stated, "Our law provides that a person commits the offense of aggravated sexual assault (of a child) if the person, with a child younger than fourteen (14) years of age, intentionally or knowingly causes the contact with or penetration of the sexual organ of a child by any means." The application paragraph echoed the abstract paragraph, except that it also listed several ways in which Evans could have committed aggravated sexual assault against E.E., including, by penetrating E.E.'s sexual organ with his tongue, by penetrating E.E.'s sexual organ with his sexual organ, by penetrating E.E.'s sexual organ with his finger, and by penetrating E.E.'s anus with his penis.
It is the application paragraph of the charge, not the abstract portion, that authorizes a conviction. Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim. App. 1996); Campbell v. State, 910 S.W.2d 475, 477 (Tex. Crim. App. 1995). The abstract paragraph serves as a glossary to assist the jury in understanding the meaning of concepts and terms that are contained in the application paragraph. Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997). An abstract charge on a theory of law that is not applied to the facts does not authorize the jury to convict on that theory. Hutch, 922 S.W.2d at 172. In general, reversible error occurs in the abstract instruction only when the instruction is an incorrect or misleading statement of law that the jury must understand to implement the commands of the application paragraph. Plata, 926 S.W.2d at 302.
The definition of aggravated sexual assault contained in the abstract paragraph was not an incorrect statement or a misleading statement of the law. Likewise, the application paragraph, alleging more than one way that Evans could have committed aggravated sexual assault against E.E., was not incorrect or misleading. In sum, the instructions contained in both sections were correct, although the language in the abstract portion of the charge was slightly more limited than the language contained in the application paragraph.
Absent any evidence to the contrary, we presume that the jury understood and followed the court's charge. Hutch, 922 S.W.2d at 172. Thus, we presume that the jury found Evans guilty of continuous sexual abuse of a young child pursuant to the application paragraph, which allowed the jury to consider multiple ways to commit aggravated sexual assault against E.E., including penetration of her anus or penetration of her sexual organ .
Even if we found that the trial court's jury charge contained error, Evans has not made a showing of egregious harm because the jury was required to find only that Evans committed two acts of aggravated sexual assault to support its conviction of continuous sexual abuse of a young child. Yet, Evans does not challenge the sufficiency of the evidence in regard to at least five of the State's six underlying allegations.
We overrule this issue. (5) The Judgment Improperly Contained a $100.00 Fine
In its judgment, the trial court assessed a $100.00 fine against Evans pursuant to Article 102.0186 of the Texas Code of Criminal Procedure. Evans contends that the trial court erred in assessing that fine because it did not orally pronounce it in court. According to Evans, the fine should be deleted from the judgment. We agree that the fine should be deleted from the judgment because it was court costs, not a fine. We modify the trial court's judgment by deleting $100.00 from the fine section of the judgment.
The State contends that Section 102.0186 of the Texas Code of Criminal Procedure does not require an oral pronouncement of the $100.00 fine because the statute specifically states that a person convicted of one of the delineated sex offenses shall pay a fine of $100.00. We find it unnecessary to discuss the parties' arguments because they are not applicable to our disposition of this issue.
The clerk's bill of costs correctly included the $100.00 assessment as court costs. We address just the $100.00 entry in the judgment characterized as a fine.
"[C]ourt costs are not part of the sentence and do not need to be orally pronounced." Allen v. State, 426 S.W.3d 253, 257 (Tex. App.—Texarkana 2013, no pet.). The version of Article 102.0186 of the Texas Code of Criminal Procedure that applies to this case stated that a person convicted of a child sexual assault offense was to pay an additional cost of $100.00 as a "child abuse prevention fee" and that the cost was to be collected by the clerk. Act of May 29, 2005, 79th Leg., R.S., ch. 268, § 1.127, 2005 Tex. Gen. Laws 621, 684 (codified at TEX. CODE CRIM. PROC. art. 102.0186(d)). "[T]he $100 imposed to be deposited in 'the county child abuse prevention fund' is related to the administration of the criminal justice system." Ingram v. State, 503 S.W.3d 745, 749 (Tex. App.—Fort Worth 2016, pet. ref'd); See Act of May 29, 2005, 79th Leg., R.S., ch. 268, § 1.127, 2005 Tex. Gen. Laws 621, 684 (codified at TEX. CODE CRIM. PROC. art. 102.0186(d)). As a result, the $100.00 cost was not required to be orally pronounced. See Ingram, 503 S.W.3d at 748.
The current version of Article 102.0186 labels the $100.00 assessment as a fine but does not apply in this case since Evans's offense occurred before the January 1, 2020, effective date. See Act of May 21, 2019, 86th Leg., R.S., ch. 1352, §§ 2.39, 5.01, 2019 Tex. Gen. Laws 60, 131 (codified at TEX. CODE CRIM. PROC. art. 102.0186(a), (c)) (eff. Jan. 1, 2020).
"We have the authority to modify the judgment to make the record speak the truth." Minter v. State, 570 S.W.3d 941, 944 (Tex. App.—Texarkana 2019, no pet.) (citing TEX. R. APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.)). To make the record speak the truth, we must delete the $100.00 assessment from the fine section of the trial court's judgment.
We modify the trial court's judgment to eliminate the $100.00 fine. As modified, the judgment is affirmed.
Josh R. Morriss, III
Chief Justice Date Submitted: August 13, 2020
Date Decided: November 13, 2020 Do Not Publish