Opinion
10-21-00269-CR
05-11-2022
BENJAMIN ERIC KILCREASE, Appellant v. THE STATE OF TEXAS, Appellee
DO NOT PUBLISH
From the 413th District Court Johnson County, Texas Trial Court No. DC-F201900616
Before Chief Justice Gray, Justice Johnson, and Justice Smith
MEMORANDUM OPINION
MATT JOHNSON, JUSTICE
Appellant Benjamin Kilcrease was charged by indictment with one count of indecency with a child by contact. See Tex. Penal Code Ann. § 21.11(a)(1). The jury found Kilcrease guilty and assessed punishment at three years' incarceration and a $2,000 fine. In two issues, Kilcrease challenges the sufficiency of the evidence supporting his conviction and the jury charge at the guilt-innocence phase of trial. We affirm.
Sufficiency of the evidence
In his first issue, Kilcrease alleges that the evidence was insufficient to support his conviction of indecency with a child by contact. We disagree.
STANDARD OF REVIEW
The Court of Criminal Appeals has expressed our standard of review of a sufficiency issue as follows:
When addressing a challenge to the sufficiency of the evidence, we consider whether, after viewing all of the evidence in the light most favorable to the verdict, 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, 61 L.Ed.2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the appellate court to defer "to the responsibility of the trier of fact fairly 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. 2781. We may not re-weigh the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting a sufficiency review must not engage in a "divide and conquer" strategy but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate about the meaning of facts or evidence, juries are permitted to draw any reasonable inferences from the facts so long as each inference is supported by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319, 99 S.Ct. 2781); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.
We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to "the elements of the offense as defined by the hypothetically correct jury charge for the case." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law as authorized by the indictment" includes the statutory elements of the offense and those elements as modified by the indictment. Daugherty, 387 S.W.3d at 665.Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
ANALYSIS
As stated earlier, Kilcrease was convicted of indecency with a child by contact. See Tex. Penal Code Ann. § 21.11. A person commits the offense of indecency with a child if, among other things, they engage in sexual contact with the child or causes the child to engage in sexual contact. Id. § 21.11(a)(1). Under section 21.11 of the Texas Penal Code, a child is a person younger than seventeen years old. Id. Furthermore,
"sexual contact" means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person . . . any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or . . . any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.Id. § 21.11(c).
Here, C.F., who was nineteen years old at the time of trial, testified that when she was seven years old, she slept in the same bed as her grandmother and Kilcrease. On one morning when she was seven years old, she felt Kilcrease touching her inappropriately while she was lying in bed. C.F. explained that Kilcrease touched her vagina both over and under her clothes, and that he tried to penetrate her with his finger.
In addition, the record contains a videotaped confession from Kilcrease, wherein he admitted to "accidentally" touching C.F.'s vagina over her clothes. He then provided a written, voluntary statement to police indicating that: "We were in bed[.] I rolled over and accidently [sic] touched her [C.F.] in [the] wrong spot imedetly [sic] pulled back with regret[.] That's all I remember."
Despite the foregoing evidence, Kilcrease argues on appeal that the evidence is insufficient to support his conviction because there was no physical or medical evidence presented, the evidence suggests that any touch was accidental and not intended to gratify his sexual desire, and because only C.F. testified about the inappropriate touching.
We first note that a conviction for indecency with a child is supportable on the uncorroborated testimony of the victim of the sexual offense. See Tex. Code Crim. Proc. Ann. art. 38.07. Furthermore, the requisite specific intent of the offense can be inferred from the defendant's conduct and remarks and all the surrounding circumstances. See McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981); see also Tyler v. State, 950 S.W.2d 787, 789 (Tex. App.-Fort Worth 1997, no pet.) (noting that, in an indecency-with-a-child-by-contact case, an "oral expression of intent is not required. The conduct alone is sufficient to infer intent"). Additionally, the lack of physical or medical evidence does not necessarily render the evidence insufficient to support a conviction. See Soto v. State, 267 S.W.3d 327, 332 (Tex. App.-Corpus Christi 2008, no pet.); Murphy v. State, 4 S.W.3d 926, 930 (Tex. App.-Waco 1999, pet. ref'd).
Viewing the evidence in the light most favorable to the jury's verdict, we conclude that a rational trier of fact could have concluded that Kilcrease committed the offense of indecency with a child by contact. See Tex. Penal Code Ann. § 21.11(a)(1); see also Jackson, 443 U.S. at 319; Zuniga, 551 S.W.3d at 732-33; Villa, 514 S.W.3d at 232. We overrule Kilcrease's first issue.
Jury Charge Error
In his second issue, Kilcrease argues that the trial court failed to limit or tailor the definition of intentionally, as applicable to indecency with a child by contact. Kilcrease contends that he was egregiously harmed by this error.
STANDARD OF REVIEW
In reviewing a jury-charge issue, an appellate court's first duty is to determine whether the charge contains error. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). If the jury charge contains error, the appellate court must analyze that error for harm. Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). The court will reverse if an error was properly preserved by objection and is not harmless. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, where a party does not properly preserve error by proper objection, the court will only reverse for egregious harm, meaning Kilcrease did not receive a fair and impartial trial. Id. To obtain a reversal for jury-charge error, Kilcrease must have suffered actual harm and not merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).
Kilcrease did not object to the jury charge in the trial court; thus, he must show egregious harm. See Almanza, 686 S.W.2d at 171. In examining the record for egregious harm, we consider the jury charge, the state of the evidence, the final arguments of the parties, and any other relevant information revealed by the record of the trial as a whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006).
ANALYSIS
The culpable mental states in the penal code encompass three possible conduct elements that may be involved in an offense: (1) nature of the conduct; (2) result of the conduct; and (3) circumstances surrounding the conduct. Tex. Penal Code Ann. § 6.03; see McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). When an offense is delineated explicitly as to the type of conduct, the trial court should limit the statutory definitions in the jury charge to the culpable mental state required. See Price v. State, 457 S.W.3d 437, 441 (Tex. Crim. App. 2015); Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994).
Kilcrease was charged by indictment with indecency with a child by contact. Indecency with a child by contact requires that the perpetrator act with "the intent to arouse or gratify" sexual desire. Tex. Penal Code Ann. § 21.11(c). Kilcrease argues that the definition of intent in the abstract should have been limited to the nature of the actor's conduct, as applicable to the indecency with a child statute.
Indecency with a child is a "nature of conduct" offense, meaning that the State must prove that a defendant acted with the specific intent to arouse or gratify sexual desire. See Pizzo v. State, 235 S.W.3d 711, 717-19 (Tex. Crim. App. 2007) (holding that different types of conduct under the indecency-with-a-child statute are different "nature of conduct" offenses); see also Washington v. State, 930 S.W.2d 695, 699-700 (Tex. App.-El Paso 1996, no pet.).
With respect to the culpable mental states, the abstract portion of the charge provided the following: "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." The abstract definition for "intentionally" tracks the entirety of the language in section 6.03(a) of the Texas Penal Code. See Tex. Penal Code Ann. § 6.03(a).
Nevertheless, the application portion of the jury charge stated:
Now bearing in mind the foregoing instruction, if you believe from the evidence beyond a reasonable doubt that the Defendant, Benjamin Eric Kilcrease, on or about January 31, 2008, in the County of Johnson and State of Texas, did then and there with the intent to arouse or gratify the sexual desire of the said Defendant, engage in sexual contact with [C.F.], a child younger than 17 years of age, by touching the genitals of [C.F.], then you will find the Defendant guilty of the offense alleged in the indictment and so say by your verdict, but if you do not so believe or if you have a reasonable doubt thereof, you will acquit the Defendant and say by your verdict "not guilty."
As shown above, "intentionally" in the application portion of the jury charge was properly tailored to the nature of Kilcrease's conduct. Furthermore, the language tracked the allegations made in the indictment.
The Court of Criminal Appeals has held that "[w]here the application paragraph correctly instructs the jury, an error in the abstract instruction is not egregious." Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); see Plata v. State, 926 S.W.2d 300, 302-03 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) (holding that the inclusion of merely superfluous abstraction never produces reversible error in the court's charge because it has no effect on the jury's ability to implement fairly and accurately the commands of the application paragraph or paragraphs). Abstract statements of law that go beyond the allegations in the indictment will not present reversible error when the trial court's application of the law to the facts effectively restricts the jury's deliberation to the allegations in the indictment. Grady v. State, 614 S.W.2d 830, 831 (Tex. Crim. App. 1981).
Therefore, assuming, without deciding, that the abstract portion of the charge contained error, we cannot conclude that the purported error was egregious because the application paragraph correctly limited the culpable mental state as charged in the indictment. See Medina, 7 S.W.3d at 640; Plata, 926 S.W.2d at 302-03; Grady, 614 S.W.2d at 831; see also Pizzo, 235 S.W.3d at 717-19. As such, we cannot say that this factor weighs in favor of a finding of egregious harm.
Additionally, as we concluded earlier, the evidence supporting Kilcrease's conviction is sufficient, especially considering that the record contains testimony from C.F. of the touching, a video of Kilcrease confessing to the touching, and Kilcrease's written statement wherein he admitted to touching C.F. Furthermore, from this evidence, a reasonable factfinder could infer that Kilcrease touched C.F. with the intent to arouse or gratify his sexual desire. We therefore conclude that this factor does not weigh in favor of a finding of egregious harm.
Moreover, the arguments of counsel did not exacerbate the purported error. In fact, the prosecutor's argument focused on the requisite specific intent of the relevant offense, emphasizing that, contrary to defense counsel's argument, the physical contact between Kilcrease and C.F. was no accident. Rather, the prosecutor asserted that the touching was done solely with the intent to arouse or gratify Kilcrease's sexual desire. In other words, the arguments of counsel reinforced that the jury had to determine whether Kilcrease had the specific intent to arouse or gratify his sexual desire when he touched C.F., which was the proper inquiry with respect to the culpable mental state. We cannot say that this factor weighs in favor of a finding of egregious harm.
Neither party identified any other relevant evidence in the record as a whole.
Based on the foregoing, we conclude that any error in the abstract portion of the charge was not calculated to injure Kilcrease's rights or deprive him of a fair and impartial trial. See Almanza, 686 S.W.2d at 171; see also Stuhler, 218 S.W.3d at 719; Sanchez, 209 S.W.3d at 121. We overrule Kilcrease's second issue.
Conclusion
Having overruled both of Kilcrease's issues on appeal, we affirm the judgment of the trial court.
Affirmed.