Opinion
13-23-00185-CR
05-02-2024
LONNIE PAUL MILLER, Appellant, v. THE STATE OF TEXAS, Appellee.
Do not publish. Tex.R.App.P. 47.2(b).
ON APPEAL FROM THE 399TH DISTRICT COURT OF BEXAR COUNTY, TEXAS
Before Justices Longoria, Silva, and Peña
MEMORANDUM OPINION
L. ARON PEÑA JR. JUSTICE
Appellant Lonnie Paul Miller appeals his conviction for continuous sexual abuse of a child younger than fourteen years of age. See Tex. Penal Code Ann. § 21.02(b)(2)(A). After returning a guilty verdict against Miller, and after finding a separate enhancement paragraph to be "true," the jury sentenced him to a term of life imprisonment. See id. § 21.02(h). By one issue, Miller claims that there was reversible error in the jury charge.
This appeal was transferred from the Fourth Court of Appeals in San Antonio pursuant to an order issued by the Supreme Court of Texas. See Tex. Gov't Code Ann. § 73.001.
I. Background
In a one-count indictment, Miller was charged with continuous sexual abuse of a child younger than fourteen years of age. See id. § 21.02(b)(2)(A). The indictment alleged that Miller "on or about [the] 15th Day of January, 2014 through [the] 15th Day of July, 2014" committed two or more acts of sexual abuse against D.L., "a child who was younger than 14 years," by intentionally and knowingly causing the penetration of D.L.'s mouth with Miller's sexual organ, see id. § 22.011(a)(2)(B), and causing the sexual organ of D.L. to contact the mouth of Miller. See id. § 22.011(a)(2)(C). The indictment included an enhancement paragraph, see, generally, id. § 12.42, alleging that Miller had been previously convicted of felony aggravated sexual assault. See id. § 22.021.
To protect the identity of the complainant, we refer to her by her initials. See Tex. Const. art. I, § 30(a)(1) (providing that a crime victim has "the right to be treated . . . with respect for the victim's dignity and privacy throughout the criminal justice process").
After returning a guilty verdict against Miller, and after finding the separate enhancement paragraph to be "true," the jury sentenced him to a term of life imprisonment. See id. § 21.02(h). This appeal followed.
II. Standard of Review & Applicable Law
The Texas Code of Criminal Procedure provides that the trial court must "deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case." Tex. Code Crim. Proc. art. 36.14. The charge is meant to inform the jury of the applicable law and how to apply it to the facts of the case. See Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007). Abstract paragraphs in a jury charge "serve as a glossary to help the jury understand the meaning of concepts and terms used in the application paragraphs of the charge." Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012). Application paragraphs apply the "pertinent penal law, abstract definitions, and general legal principles to the particular facts and the indictment allegations." Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012) (citations omitted).
When an appellant claims error in the jury charge, "[f]irst, we determine whether the charge is erroneous." Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022). Second, "[i]f it is, then we must decide whether the appellant was harmed by the erroneous charge." Id. "If a defendant timely objects to alleged jury-charge error, the record need only show 'some harm' to obtain relief." Id. (citation omitted). If an appellant did not object to the erroneous charge, "he must show that the error was 'fundamental' and that he suffered 'egregious harm,'" which is a "high and difficult standard which must be borne out by the trial record." Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013) (citations omitted). Egregious harm "must be based on a finding of actual rather than theoretical harm." Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015) (quoting Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011)). "Actual harm is established when the erroneous jury instruction affected the very basis of the case, deprived the defendant of a valuable right, or vitally affected a defensive theory." Id. (cleaned up); see Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015) (setting out the factors to consider when evaluating harm).
"As a general rule, the instructions must also conform to allegations in the indictment." Sanchez v. State, 376 S.W.3d 767, 773 (Tex. Crim. App. 2012) (citing Curry v. State, 30 S.W.3d 394, 399 (Tex. Crim. App. 2000) (noting that under both state and federal constitutions, "[t]he charging instrument must convey sufficient notice to allow the accused to prepare a defense")). There is error if the abstract portion of the jury charge provides an incorrect or misleading statement of the law. Alcoser, 663 S.W.3d at 165. "[A] jury charge with an application paragraph that incorrectly applies the pertinent penal law to the facts of a given case is erroneous." Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015) (citations omitted). Further, we must assume that the jury followed the instructions as given. See Luquis v. State, 72 S.W.3d 355, 366 (Tex. Crim. App. 2002).
III. Discussion
We must first determine whether the jury charge in this case was erroneous. See Alcoser, 663 S.W.3d at 165. Miller argues that the jury charge in this case was erroneous for providing in its abstract portion that it was sufficient for the State to prove that the "offense alleged was committed some time before October 27, 2020," the date the indictment was presented, because it "mistakenly allows the jury to find an offense even after the complainant's outcry on October 22, 2019," which "is a factually impossible date for the complainant never returned to [Miller]'s residence after her outcry." Further, Miller contends that the jury charge is erroneous because the indictment alleged that he committed continuous sexual abuse of a child "on or about [the] 15th Day of January 2014 through [the] 15th Day of July 2014," but here, Miller argues, "the proof of time spans from 2009 to 2015 (but the charge allows the time from 2009 to October 27, 2020; this does not correspond to both the allegations and the proof)." Miller also seems to suggest that because D.L. was fifteen when she testified at trial, the jury could have found him guilty based on predicate acts that occurred when she was not younger than fourteen years of age. See Tex. Penal Code Ann. § 21.02(b)(2)(A).
As to the language in the abstract portion of the jury charge that it would be sufficient for a guilty verdict if the State proved that Miller committed continuous sexual abuse of a young child "some time before October 27, 2020," such language did not incorrectly or misleadingly state the law. See Alcoser, 663 S.W.3d at 165. The code of criminal procedure instructs the State that, for an indictment to be sufficient, "[t]he time mentioned must be some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation." Tex. Code Crim. Proc. Ann. art. 21.02 (emphasis added).
Miller's suggestion that the inclusion of the date of the presentment of the indictment in the jury charge would impermissibly authorize a conviction for conduct not alleged in the indictment is without basis. The jury charge contains an application paragraph alleging that Miller committed the requisite predicate acts of sexual abuse "from on or about the 15th Day of January, 2014 through the 15th Day of July, 2014[.]" See Luquis, 72 S.W.3d at 366 ("We assume that the jury followed the instructions as given[.]"). Further, "the State is not required to specify an exact date on which the continuous sexual abuse began, and the State may therefore allege that the conduct began on or about a particular date, lasting through the 30-day minimum period of time set forth in the statute." Holton v. State, 487 S.W.3d 600, 610 (Tex. App.-El Paso 2015, no pet.). Accordingly, the language in the jury charge did not incorrectly or misleadingly state the law or incorrectly apply the law to the facts of the case. See Alcoser, 663 S.W.3d at 165; Cortez, 469 S.W.3d at 598. The inclusion of the precise date of the presentment of the indictment conformed to law, see Tex. Code Crim. Proc. Ann. art. 21.02, and the time period included in the application portion of the jury charge was consistent with the indictment and properly "allege[d] that the conduct began on or about a particular date, lasting through the 30-day minimum period of time set forth in the statute." Holton, 487 S.W.3d at 610.
Miller provides no legal authority to support his conclusory argument that incorporating the date of the presentment of the indictment into the jury charge, accurately tracking the language as to the sufficiency of an indictment under Article 21.01, nevertheless is error. A claim that is conclusory in nature and not supported by cited authority presents nothing for review. See Tex. R. App. P. 38.1(i) (requiring that an appellant's brief "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"); Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995) (finding that briefing that does not comply with Texas Rule of Appellate Procedure 38.1 presents nothing for an appellate court to review); see also Wolfe v. State, 509 S.W.3d 325, 343 (Tex. Crim. App. 2017) ("An appellate court has no obligation to construct and compose an appellant's issues, facts, and arguments with appropriate citations to authorities and to the record." (cleaned up)).
Miller cites to Jones v. State in support of the proposition that inclusion of the date of the presentment of the indictment in the jury charge was error because it failed to correspond to both the allegations and the proof. 815 S.W.2d 667 (Tex. Crim. App. 1991), overruled by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997). The claim in Jones, however, was resolved as an insufficiency of the evidence claim, not a jury charge error claim. See id. at 671. Miller has not presented a sufficiency claim for our review. See Tex. R. App. P. 38.1(i); Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995). Relatedly, Miller argues that inclusion of the date of the presentment of the indictment in the jury charge "authorize[d] a conviction on a theory not alleged in the charging instrument." Miller cites only two cases, neither of which supports his claim. See Jackson v. State, 576 S.W.2d 88 (Tex. Crim. App. 1979) (finding reversible error because the jury charge authorized conviction based on a mental state not found in the statute of conviction); Beggs v. State, 597 S.W.2d 375 (Tex. Crim. App. 1980) (finding reversible error because appellant properly requested a paragraph in the jury charge applying the law of mistake of fact, which was denied by the trial court).
As to Miller's suggestion that the charge was erroneous because the jury may have found Miller guilty of continuous sexual abuse of a child younger than fourteen years of age, even though D.L. may have been fourteen years of age or older at the time of the offense, we also find no error. Miller cites no authority to support his contention that a jury charge cannot include dates in an abstract paragraph pursuant to the code of criminal procedure, see Tex. Code Crim. Proc. Ann. art. 21.02, because doing so would theoretically allow jurors to make impermissible inferences that could possibly render the evidence insufficient, despite application paragraphs constraining such inferences. See Tex. R. App. P. 38.1(i); Alvarado, 912 S.W.2d at 210; see also McCreary v. State, 649 S.W.3d 902, 904 (Tex. App.-Fort Worth 2022, pet. ref'd) (noting that in the context of a sufficiency review, "we view all the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the crime's essential elements beyond a reasonable doubt") (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Luquis, 72 S.W.3d at 366 ("We assume that the jury followed the instructions as given[.]"). For the foregoing reasons, we conclude that the jury charge was not erroneous. Having found no error, we need not address harm. See Alcoser, 663 S.W.3d at 165.
We overrule Miller's sole issue.
IV. Conclusion
We affirm the trial court's judgment.