Opinion
No. 10-05-00325-CR
Opinion delivered and filed July 18, 2007. DO NOT PUBLISH.
Appeal From the 54th District Court McLennan County, Texas, Trial Court No. 2005-390-C. Affirmed.
Before Justice VANCE, Judge STEPHEN ELLIS, and Judge RALPH H. WALTON, Jr..
Judge of the 35th District Court of Brown and Mills Counties, sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to section 74.003(h) of the Government Code. See TEX. GOV'T CODE ANN. § 74.003(h) (Vernon 2005).
Judge of the 355th District Court of Hood County, sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to section 74.003(h) of the Government Code. See TEX. GOV'T CODE ANN. § 74.003(h) (Vernon 2005).
MEMORANDUM OPINION
Appellant Terry Lee McCormick appeals his conviction for indecency with a child. He brings five issues on appeal. We will affirm.
Background
McCormick's alleged victim was his stepdaughter, E.R. Early in his relationship with E.R.'s mother, Roberta, McCormick was a "great father figure" and seemed to like Roberta's three children. E.R. testified that her relationship changed with McCormick when the family moved from an apartment to a house when she was fifteen or sixteen years old. She recalled one night in which she saw McCormick naked in the doorway between the kitchen and her bedroom. He saw her, covered himself and left the room. After that incident, he frequently entered her room at night. On several occasions he stood next to her bed and "breath[ed] heavily." It sounded to E.R. as if he were masturbating. On other occasions, McCormick grabbed E.R. by the hips, forced her to sit on his lap, and rubbed her breasts. Initially, McCormick touched her on the outside of her clothing, but his advances soon escalated to reaching up her shirt, touching her breasts, and kissing her on the lips. E.R. also testified that when she was "sixteen going on seventeen" McCormick got in the shower with her one morning. He asked her to wash his back but did not touch her in the shower.Jury Charge Error
McCormick's first four issues complain of jury charge error. "Our first duty in analyzing a jury-charge issue is to decide whether error exists." Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005). If error exists, we then "analyze that error for harm." Id. When, as here, an appellant fails to object to the charge at trial, he must show egregious harm to prevail on appeal. See id. at 743-44; see also Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985). "The record must show that a defendant has suffered actual, rather than merely theoretical, harm." Ngo, 175 S.W.3d at 750. "Errors that result in egregious harm are those that affect 'the very basis of the case,' 'deprive the defendant of a valuable right,' or 'vitally affect a defensive theory.'" Id. (quoting Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996)). "[T]o determine whether the error was so egregious that a defendant was denied a fair and impartial trial, a reviewing court should examine: 1) the entire jury charge; 2) the state of the evidence; 3) the arguments of counsel; and 4) any other relevant information in the record." Ngo, 175 S.Now if you find from the evidence beyond a reasonable doubt that on or about the 1st day of December, 1998 . . . the defendant, Terry Lee McCormick, did then and there . . . intentionally or knowingly engage in sexual contact with [E.R.] by touching the breast of [E.R.] . . . then you will find the defendant guilty of the offense of Indecency with a Child, as alleged in Count 1 of the indictment.The jury charge on the second count was printed on a separate page and read as follows:
Now if you find from the evidence beyond a reasonable doubt that on or about the 1st day of August, 1998 . . . the defendant, Terry Lee McCormick, did then and there . . . intentionally or knowingly expose the Defendant's genitals, knowing that [E.R.] . . . was present, then you will find the defendant guilty of the offense of Indecency with a Child, as alleged in Count 2 of the indictment.Unlike Ngo and Francis, the jury in this case was not charged in the disjunctive. The jury charge contained two separate counts, each relating to a separate and distinct offense. On appeal, McCormick proposes the following instruction:
You have been instructed that your verdict, whether it is guilty or not guilty, must be unanimous. The following instruction applies to the unanimity requirement as to Count I.
Count I of the indictment accuses the defendant of committing the crime of Indecency with a Child by touching the breast of ER. In order to return a guilty verdict, all twelve of you must agree as to the specific act, if any, that constitutes the conduct alleged in Count I.(citing FIFTH CIRCUIT DISTRICT JUDGES ASSOCIATION PATTERN JURY INSTRUCTIONS (Criminal Cases) § 1.25 (2001)). Because the jury was not charged in the disjunctive and the charge contained separate verdict forms for each count, we find that a separate unanimity instruction on each count was not required. See Bottenfield v. State, 77 S.W.3d 349, 359 (Tex. App-Fort Worth 2002, pet. ref'd). We overrule McCormick's second issue. Comment on Weight of the Evidence McCormick complains, in his third issue, that the trial court improperly commented on the weight of the evidence in its charge to the jury. Specifically, he complains that by instructing the jury to find him guilty if he "engage[d] in sexual contact with [E.R.] by touching the breast of [E.R.], a child younger than seventeen years of age and not the spouse of "McCormick, the trial court relieved the State of carrying its burden to prove that the victim was seventeen years of age and not McCormick's spouse. He argues that the trial court should have instructed the jury as follows: "engage[d] in sexual contact with [E.R.] by touching the breast of [E.R.], and that [E.R.] was then under the age of seventeen years and not the spouse of" McCormick. He did not object at trial. In preparing and submitting a jury charge, a trial court is prohibited from expressing any opinion as to the weight of the evidence, from summing up the testimony, from discussing the facts, or from using any argument in the charge calculated to arouse the sympathy or to excite the passions of the jury. TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007). A charge that constitutes a comment by the court on the elements of the offense charged, or assumes the truth of a controverted issue, is a comment on the weight of the evidence and is erroneous. Whaley v. State, 717 S.W.2d 26, 32 (Tex.Crim.App. 1986); see Grady v. State, 634 S.W.2d 316, 317 (Tex.Crim.App. 1982). The elements of the offense of Indecency with a Child at the time of trial were: (1) touching of the anus, breast, or any part of the genitals; (2) of a child younger than 17 years; (3) and not the spouse of the defendant; (4) with the intent to arouse or gratify the sexual desire of any person. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 21.11(a), 1993 Tex. Gen. Laws 3586, 3616 (amended 2001) (current version at TEX. PEN. CODE ANN. § 21.11(a) (Vernon 2003)). Because the charge assumed E.R. was over the age of seventeen, which fact the defense challenged, and not McCormick's spouse, we find that the trial court erred by improperly commenting on the weight of the evidence in the jury charge. Again, in determining if McCormick suffered egregious harm, we must examine the entire jury charge, the state of the evidence, the arguments of counsel, and any other relevant information in the record. Ngo, 175
Our law provides that a person commits an offense if, with a child younger than seventeen (17) years of age and not his spouse, whether the child is of the same or opposite sex, he engages in sexual contact with the child; or with intent to arouse or gratify the sexual desire of any person, exposes anyThe State also discussed all the elements with the jury during closing arguments. After reviewing the evidence that established that McCormick committed Count I on December 1, 1998 and Count II on August 1, 1998 and that he intentionally or knowingly engaged in sexual conduct, the State discussed whether the victim was under the age of seventeen and married to the defendant. The State argued:apart of the person's genitals, knowing the child is present.
Obviously, [E.R.] wasn't the spouse. [He was m]arried to Roberta McCormick. And [we] know from the chart that she was between the ages, 15 and 16. [Defense Counsel] has done a good job about talking about Joliet, and 18, and things of that nature. Well, we're here today to decide what happened between these dates on Colcord. You heard from [E.R.]. She said it initiated when she was 15.
. . .
And I think you can see, ladies and gentlemen, from Count I, we met all of those elements beyond a reasonable doubt.The record shows that the State told the jury that it had to find, beyond a reasonable doubt, that McCormick committed each element of the offense. Thus, we cannot say that McCormick was egregiously harmed by the trial court's error. Accordingly, we overrule his third issue. Ex Post Facto Application In his fourth issue, McCormick complains that the trial court erred by including the following instruction, which he argues incorporates law not in effect at the time of the alleged offense:
By the term "sexual contact," as used herein, is meant any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child, with intent to arouse or gratify the sexual desire of any person; 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 with the intent to arouse or gratify the sexual desire of any person.Specifically, he complains of the language: "touching through clothing." Under the current statute, "sexual contact," for purposes of Section 21.11: Means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:
(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or
(2) 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.TEX. PEN. CODE ANN. § 21.11(c) (Vernon 2003). The definition was amended effective September 1, 2001, for offenses committed on or after that date. See Act of May 23, 2001, 77th Leg., R.S., ch. 739. § 2, sec. (c), 2001 Tex. Gen. Laws 1463 (current version at TEX. PEN. CODE ANN. § 21.11(c)); §§ 3-4, 2001 Tex. Gen. Laws at 1463-64. At the time of the offense, the statutory definition of "sexual contact" for purposes of Penal Code Chapter 21 was: "touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person." Act of May 29, 1993, 73rd Leg., R.S., ch. 900, art. 1, § 1.01, sec. 21.01(2), 1993 Tex. Gen. Laws at 3616, amended by Act of May 23, 2001, 77th Leg., R.S., ch. 739, § 1, 2001 Tex. Gen. Laws 1463, 1463. In Resnick, the Court of Criminal Appeals held that "sexual contact," as defined at the time of McCormick's offense, does not require flesh-to-flesh contact. Resnick v. State, 574 S.W.2d 558, 560 (Tex.Crim.App. 1978). The Court stated:
Th[e] definition makes it quite plain that the essence of the act of touching is to perceive by the sense of feeling. It is a matter of the commonest knowledge that the interposition of a layer of fabric between a person's hand and an object upon which the hand is placed will not prevent that person from feeling the object thus concealed. Were we to accept appellant's contention that he did not "touch" the [victim's] genitals because no flesh-to-flesh contact was made, absurd results would follow. Under such an analysis, a defendant who thrust his hand beneath a victim's undergarments and fondled his or her genitals in a public place could not be prosecuted for public lewdness if he were wearing a glove.Id. Courts have reached the same result in Indecency-with-a-Child prosecutions. See Deason v. State, 786 S.W.2d 711, 716 (Tex.Crim.App. 1990); In re J.S., 35 S.W.3d 287, 292 (Tex.App.-Fort Worth 2001, no pet.); Cruz v. State, 742 S.W.2d 545, 548 (Tex.App.-Austin 1988, no pet.); Guia v. State, 723 S.W.2d 763, 766 (Tex.App.-Dallas 1986, pet. ref'd). Because case law at the time of the offense provided that the definition of "sexual contact" included touching through clothing, we find that the trial court instructed the jury on law in effect at the time. Accordingly, we find no error and overrule McCormick's fourth issue.