Opinion
NUMBER 13-15-00460-CR
04-20-2017
KEITH HICKMAN, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 252nd District Court of Jefferson County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Hinojosa
Memorandum Opinion by Justice Hinojosa
Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has been transferred to this Court from the Ninth Court of Appeals in Beaumont, Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2015 R.S.).
Appellant Keith Hickman appeals his conviction for continuous sexual abuse of a child, a first-degree felony. See TEX. PENAL CODE ANN. § 21.02 (West, Westlaw through 2015 R.S.). A jury returned a guilty verdict, and the trial court sentenced appellant to thirty years' imprisonment in the Texas Department of Justice-Institutional Division. By one issue, appellant argues he suffered egregious harm from an erroneous jury charge. We affirm.
I. JURY CHARGE ERROR
Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
Appellant argues "[t]he jury's guilty verdict was based upon an erroneous jury charge, which error was egregious and fundamental such that it deprived [a]ppellant of a fair and impartial trial." Specifically, appellant maintains that "the definitions for indecency with a child and its sub-definition of sexual contact were intermixed and neither were correct."
A. Pertinent Facts
Appellant was charged by indictment with the offense of continuous sexual abuse of a child by:
intentionally and knowingly during a period that was more than 30 days in duration, commit[ting] 2 or more acts of sexual abuse, namely, INDECENCY WITH A CHILD BY SEXUAL CONTACT against [R.A.], a child younger than fourteen years of age and at the time [appellant] was older than seventeen years of age.(Emphasis in original.)
We refer to the minor victim by her initials to protect her identity.
The application portion of the jury charge instructed the jury in relevant part that it must find beyond a reasonable doubt that appellant "intentionally or knowingly[,] during a period that was more than 30 days in duration, commit[ted] 2 or more acts of sexual abuse, namely, Indecency with a Child by Sexual Contact, against [R.A.], . . . a child younger than fourteen years of age, and at the time [appellant] was older than seventeen years of age."
The jury charge defined an "act of sexual abuse" as "any act that is a violation of Penal Code Section 21.11(a)(1), Indecency with a child." The charge defined "indecency with a child" as follows:
A person commits an offense if, with a child whether the child is of the same or opposite sex, he engages in sexual contact with the child with the intent to arouse or gratify the sexual desire of the person, and is not the spouse of the child.Appellant made no objection to the jury charge as written.
Sexual contact means any touching by a person, including touching through clothing, of the anus, or any part of the genitals of a child.
B. Standard of Review and Applicable Law
In analyzing a jury-charge issue, we first determine whether error exists. See Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1984) (op. on reh'g); Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd). If we find error, then we consider whether the error was harmful under the appropriate standard. Tottenham, 285 S.W.3d at 30; see also Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) ("The failure to preserve jury-charge error is not a bar to appellate review, but rather it establishes the degree of harm necessary for reversal.").
Appellant did not object to the jury charge, therefore, any potential error in the charge is reviewed only for "egregious harm." Oursbourn v. State, 259 S.W.3d 159, 174 (Tex. Crim. App. 2008). "This is a difficult standard to meet and requires a showing that the defendants were deprived of a fair and impartial trial." Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013). "[T]he error must have affected the very basis of the case, deprived the defendant of a valuable right, or vitally affected a defensive theory." Id. In determining whether egregious harm is shown, we look at the entire jury charge, the state of the evidence (including the contested issues and the weight of probative evidence), the arguments of counsel, and any other relevant information revealed by the record of the trial as a whole. Id. This analysis is fact specific and is done on a case-by-case basis. Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015).
The trial court must charge the jury on the "law applicable to the case," which requires that the jury be instructed on each element of the offense or offenses charged. TEX. CODE CRIM. PROC. ANN. art. 36.14 (West, Westlaw through 2015 R.S.). The "law applicable to the case" also includes the statutory definitions that affect the meaning of the elements of the offense. Ouellette v. State, 353 S.W.3d 868, 870 (Tex. Crim. App. 2011); Villarreal v. State, 286 S.W.3d 321, 329 (Tex. Crim. App. 2009). Therefore, a trial court must communicate to the jury each statutory definition that affects the meaning of an element of the offense. Villarreal, 286 S.W.3d at 329. "[A]bstract or definitional paragraphs serve as a kind of glossary to help the jury understand the meaning of concepts and terms used in the application paragraphs of the charge." 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) (en banc). Reversible error occurs in the giving of an abstract instruction when the instruction is an incorrect or misleading statement of a law which the jury must understand in order to implement the commands of the application paragraph. Id. (citing Riley v. State, 830 S.W.2d 584 (Tex. Crim. App. 1992); Sandig v. State, 580 S.W.2d 584, 586 (Tex. Crim. App.1979)).
C. Analysis
Here, the definition of indecency with a child by sexual contact was necessary in order for the jury to understand the elements of the charged offense—continuous sexual abuse of a child. See Villarreal, 286 S.W.3d at 329. However, we disagree that the definition in the jury charge was incorrect.
A person commits the offense of continuous sexual abuse of a child if, during a period of thirty or more days, the person commits two or more acts of sexual abuse. See TEX. PENAL CODE ANN. § 21.02(b)(1). At the time of each act of sexual abuse, the actor must be seventeen years of age or older, and the victim must be younger than fourteen. Id. § 21.02(b)(2). An "act of sexual abuse" is an act that violates one or more specified penal laws, including indecency with a child by sexual contact. See id. § 21.02(c). "[E]ach act of sexual abuse is not an 'element' of the offense; rather, the 'series' is the element of the offense, and the acts of sexual abuse are merely the manner and means of committing an element of the offense." Reckart v. State, 323 S.W.3d 588, 601 (Tex. App.—Corpus Christi 2010, pet. ref'd) (citing Jacobsen v. State, 325 S.W.3d 733, 737 (Tex. App.—Austin 2010, no pet.)).
A person commits indecency with a child by sexual contact if, "the person engages in sexual contact with the child or causes the child to engage in sexual contact." TEX. PENAL CODE ANN. § 21.11(a) (West, Westlaw through 2015 R.S.). As relevant here, "sexual contact" is defined as "any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child" if the act is "committed with the intent to arouse or gratify the sexual desire of any person[.]" Id. § 21.11(c).
To constitute an act of sexual abuse under section 21.02, indecency with a child must be committed "in a manner other than by touching, including touching through clothing, the breast of a child." Id. § 21.02(c)(2). Therefore, indecency with a child by sexual contact constitutes an act of sexual abuse under section 21.02 where a person, (1) with the intent to arouse or gratify the sexual desire of any person, (2) engages in sexual contact with a child, whether the child is of the same or opposite sex, (3) by touching, including touching through the clothing, the anus or any part of the genitals of a child. See id. §§ 21.02, 21.11.
We note the recommended definition for "Indecency with a Child by Contact" contained in the Texas Criminal Pattern Jury Charges, provides in relevant part as follows:
A person commits an offense if the person, with intent to arouse or gratify the desire of any person, engages in sexual contact with a child younger than seventeen years old by . . . any touching of the anus, breast, or any part of the genitals of the child. . . .Comm. on Pattern Jury Charges, State Bar of Tex., TEX. CRIMINAL PATTERN JURY CHARGES: INSTRUCTIONS CPJC 84.3 (2016). As noted above, to constitute an act of sexual abuse, the victim must be a child younger than fourteen years old, and the alleged sexual contact cannot be based on the touching of the breast of the child. See TEX. PENAL CODE ANN. § 21.02(b)(2), (c) (West, Westlaw through 2015 R.S.).
Sexual contact or touching may be through the clothing.
The offense is committed whether the child is of the same or opposite sex as the person engaging in sexual contact.
The jury charge set out the following definition for indecency with a child:
A person commits an offense if, with a child whether the child is of the same or opposite sex, he engages in sexual contact with the child with the intent to arouse or gratify the sexual desire of the person, and is not the spouse of the child.
Sexual contact means any touching by a person, including touching through clothing, of the anus, or any part of the genitals of a child.The definition sufficiently conveyed the meaning of indecency with a child so that the jury would be able to implement the commands of the application paragraph—whether appellant committed two or more acts of sexual abuse. See Plata, 926 S.W.2d at 302. The only significant difference between the definition in the charge and the statutory definition is the inclusion of the language "and is not the spouse of the child." This language merely reflects the available affirmative defense to the indecency with a child offense. See TEX. PENAL CODE ANN. § 21.11(b-1). We conclude that the trial court properly charged the jury on the "law applicable to the case." See TEX. CODE CRIM. PROC. ANN. art. 36.14; Ouellette, 353 S.W.3d at 870. Having found no error, we need not conduct a harm analysis. See Tottenham, 285 S.W.3d at 30.
We overrule appellant's sole issue.
II. CONCLUSION
We affirm the trial court's judgment.
LETICIA HINOJOSA
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 20th day of April, 2017.