Opinion
14-22-00598-CR
08-29-2024
CHERRY JAMILA PAYTON, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish-Tex. R. App. P. 47.2(b).
On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Cause No. 17-DCR-078498B
Panel consists of Justices Bourliot, Zimmerer, and Spain
MEMORANDUM MAJORITY OPINION
CHARLES A. SPAIN, JUSTICE
A jury found appellant Cherry Jamila Payton guilty of the first-degree felony of continuous sexual abuse of a young child. Tex. Penal Code Ann. § 21.02(b), (h). The jury assessed punishment at imprisonment for 30 years. Tex. Penal Code Ann. § 12.32(a). In her sole issue, appellant contends the trial court erred when it instructed the jury on the mistake-of-law defense instead of the mistake-of-fact defense.
I. Background
Appellant is the mother of the complainant, Jane Doe. In accordance with their religious beliefs, when Jane was 13-years old, she was promised to be married to a 47-year-old man who also shared their beliefs. Before they were married and while Jane was still 13-years old, the man moved into Jane's home and began sleeping with Jane in her room. Jane testified at trial that she and her alleged fiancé began having sex. At a visit with a pediatric gynecologist, Jane revealed that she was in a sexual relationship with her 47-year-old alleged fiancé. The gynecologist filed a report with Child Protective Services to investigate. As a result of the investigation, appellant was charged with continuous sexual abuse of a child under the age of 14-years old, as was Jane's alleged fiancé.
At trial, Jane testified to her sexual relationship with her 47-year-old alleged fiancé, which continued over many months. She testified that her mother was aware of the relationship and encouraged it. Jane also testified that when she was 10-years old, appellant engaged in sexual contact with her because it was the only way to "gain salvation." Therefore, the jury charge contained multiple alternative theories of liability instructing the jury that it could convict appellant for her role in causing or assisting in Jane's sexual abuse by her fiancé or the jury could convict appellant for both her role in causing or assisting in Jane's sexual abuse by the alleged fiancé and appellant's direct sexual abuse of Jane.
II. Analysis
In her sole issue on appeal, appellant asserts that the trial court should have given the jury an instruction on mistake of fact instead of mistake of law. As appellant points out, being mistaken as to the law is no defense to criminal liability in Texas, whereas a mistake of fact may negate the culpable mental state required for an offense. Tex. Penal Code Ann. §§ 8.02, 8.03.
A. Standard of review and applicable law
A claim of jury-charge error is reviewed in two steps. See Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). We first determine whether there is error in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If we find error, then we analyze that error for harm. Id. "Preservation of charge error does not become an issue until we assess harm." Id. If a defendant does not properly preserve error by objection, any error in the charge "should be reviewed only for 'egregious harm' under Almanza." Madden v. State, 242 S.W.3d 504, 513 (Tex. Crim. App. 2007) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984 & 1985)).
Code of Criminal Procedure article 36.14 provides that the trial court" shall . . . deliver to the jury . . . a written charge distinctly 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 to the case." Beltran de la Torre v. State, 583 S.W.3d 613, 617 (Tex. Crim. App. 2019) (quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996)). A proper jury charge therefore consists of an abstract statement of the law and the application paragraph(s). See Vasquez v. State, 389 S.W.3d 361, 366-67 (Tex. Crim. App. 2012). The abstract paragraphs of 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). Each statutory definition that affects the meaning of an element of the offense must be communicated to the jury. Villarreal v. State, 286 S.W.3d 321, 329 (Tex. Crim. App. 2009). The application paragraphs then apply the relevant law, the definitions found in the abstract portion of the charge, and general legal principles to the particular facts of the case. Vasquez, 389 S.W.3d at 366.
B. No error in the charge
We first consider whether there was error in the charge. See Ngo, 175 S.W.3d at 743. On appeal, appellant argues she "mistakenly believed that her religious beliefs negated her criminal liability."
The Penal Code provides a mistake-of-fact defense is "a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense." Tex. Penal Code Ann. § 8.02(a). "By 'kind of culpability' is meant 'culpable mental state.'" Beggs v. State, 597 S.W.2d 375, 378 (Tex. Crim. App. 1980). The mistake-of-fact instruction applies only with respect to elements that require proof of a culpable mental state. Celis v. State, 416 S.W.3d 419, 431 (Tex. Crim. App. 2013) ("we reaffirm our conclusion . . . in accordance with the intent of the drafters of the Texas Penal Code, an instruction on mistake of fact is limited to any culpable mental state required for the offense"). For example, if an offense requires that a party engage in certain conduct or act intentionally or knowingly, a mistake-of-fact defense should negate the kind of culpability required for the offense. See, e.g., Celis, 416 S.W.3d at 432 (defendant's alleged mistake about being licensed to practice law in Mexico did not entitle defendant to mistake-of-fact instruction because "that statute does not require proof of a culpable mental state as to the licensing or good-standing elements, the mistake-of-fact instruction appellant sought did not negate the kind of culpability required for the offense"); Sands v. State, 64 S.W.3d 488, 494-96 (Tex. App.- Texarkana 2001) (defendant alleged mistake of fact because he thought syringe contained vitamin B-12 instead of methamphetamine when statute required intentional or knowing possession of methamphetamine); see generally 43 George E. Dix & John M. Schmolesky, Texas Practice: Criminal Practice and Procedure § 43:36 (3d ed. 2011 & Supp. 2023).
The offense of continuous sexual abuse of a young child, as defined by statute, does not include any culpable mental state. See Tex. Penal Code Ann. § 21.02(b); Lane v. State, 357 S.W.3d 770, 776 (Tex. App.-Houston [14th Dist.] 2011, pet. ref'd) ("Section 21.02 need not prescribe some additional mental state because its actus reus is merely the repeated commission of acts already requiring culpable mental states."). The applicable culpable mental states are those required for the commission of the constituent offenses. In the charge, the jury was instructed on the elements of aggravated sexual assault of a child as the only applicable constituent offense for continuous sexual abuse of a young child:
A person commits the offense of continuous sexual assault 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; and (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) 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. Tex. Penal Code Ann. § 21.02(b), (c) (defining "act of sexual abuse"). The offense of continuous sexual abuse of a young child does not contain any additional culpable mental state other than those of its constituent acts.
Our law provides that a person commits the offense of Aggravated Sexual Assault of a Child if, with a child younger than fourteen (14) years of age, the person intentionally or knowingly:
(1) causes the penetration of the sexual organ of a child by any means;
OR
(2) causes the penetration of the mouth of a child by the sexual organ of the actor;
OR
(3) causes the sexual organ of a child to contact the mouth, or sexual organ of another person including the actor;
OR
(4) causes the mouth of a child to contact the sexual organ of person, including the actor;
OR
(5) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor.See Tex. Penal Code Ann. § 22.021(a)(1)(B), (2)(B).
To commit an aggravated sexual assault of a child, a defendant must engage in one of the five listed types of conduct intentionally or knowingly. Tex. Penal Code Ann. § 22.021(a)(1)(B). However, there is no dispute in this case that appellant was aware that Jane and the fiancé were involved in sexual conduct falling within the definition of aggravated sexual assault of a child. Appellant asserts no mistake about this. There was also uncontradicted testimony that appellant, herself, intentionally or knowingly engaged in conduct with Jane that falls within the definition of aggravated sexual assault of a child. Therefore, appellant has asserted no mistake of fact that would negate the culpable mental state required for aggravated sexual assault of a child.
In her appellate brief, appellant states that she is not alleged to have committed any acts of sexual abuse herself. However, this argument runs contrary to evidence received at trial and the jury charge. The jury charge included theories of liability that included appellant's own culpable conduct.
The mistake that appellant alleges on appeal is that she was mistaken in her belief that she did not have to follow the law because of her religious beliefs. That mistaken belief is not material to the elements of aggravated sexual assault of a child or continuous sexual abuse of a young child. And that mistaken belief does not negate her culpability for either offense. Because the instruction was not raised by the evidence, we conclude the trial court did not err in denying appellant's mistake-of-fact instruction. Therefore, we need not reach preservation or harm.
We overrule appellant's sole issue on appeal.
III. Conclusion
We affirm the judgment of the trial court as challenged on appeal.
MEMORANDUM CONCURRING OPINION
Frances Bourliot, Justice
I agree with the majority that appellant's conviction should be affirmed. I write separately because presuming without deciding error in the jury charge, I believe the error was harmless.
Standard of Review
Appellate review of alleged jury charge error involves a two-step process. Jenkins v. State, 468 S.W.3d 656, 671 (Tex. App.-Houston [14th Dist.] 2015, pet. dism'd). First, we must determine whether error occurred. Id. Second, if we find error, we must then analyze whether sufficient harm resulted from the error to require reversal. Id. When error in the charge is preserved for review, reversal is required if the error caused "some harm." Id. (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g) superseded on other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 787, 788 ((Tex. Crim. App. 1988)).
Jury charge error
Appellant contends the trial court erred when it failed to include the mistake of fact defense in the jury charge. See Tex. Penal Code Ann. §8.02. Mistake of fact is defined as "a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense." Tex. Code Ann. § 8.02. 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). Then, if we find error, we analyze that error for harm. Id. Preservation of charge error does not become an issue until we assess harm. Id. Thus, the first question of the error analysis is to determine if error occurred.
Error
If the evidence raises mistake of fact and the defendant requests an instruction on this defense, the defendant is entitled to one regardless of the strength of the evidence. Miller v. State, 605 S.W.3d 877, 882 (Tex. App.-Houston [1st Dist.] 2020, pet ref'd.); see also Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999) ("[A]n accused has the right to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the evidence.") A defensive issue is raised by the evidence if there is sufficient evidence to support a rational jury finding as to each element of the defense. Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim. App. 2020); see also Shaw v. State, 243 S.W.3d 647, 657-58 (Tex. Crim. App. 2007) ("[A] defense is supported (or raised) by the evidence if there is some evidence, from any source, on each element of the defense that, if believed by the jury, would support a rational inference that that element is true.") But if the evidence, when viewed in the light most favorable to the defendant, does not establish a defense, the instruction is not required. Miller, 605 S.W.3d at 882.
Here, the jury charge in the case gave the jury the choice. The jury could decide to convict appellant as a party to continuous sexual abuse of a child for the sexual abuse that the alleged fiancé committed against Jane in Fort Bend County. Or the jury could convict appellant, acting alone, of committing acts of sexual abuse in Harris County, in addition to the acts of sexual abuse the alleged fiancé committed in Fort Bend County. See Martinez v. State, 190 S.W.3d 254, 258-59 (Tex. App.- Houston [1st Dist.] 2006, pet ref'd). ("When a jury is charged with alternative theories of committing the same offense, it is appropriate for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted.") A mistake of fact instruction is not proper when it does not negate each specified manner and means of committing the same offense. See Murchison v. State, 93 S.W.3d 239, 252 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd). (Finding "in order to raise an issue of mistake of fact, the evidence, viewed in a light favorable to appellants, must have raised an issue as to the existence of a mistaken belief by appellants that negates the culpable mental state as to all five of [the alternative manner and means of committing the same offense].")
In the case at hand, the court presumes without deciding there was error. See Burdick v. State, 474 S.W.3d 17, 28 (Tex. App.-Houston [14th Dist.] 2015, no pet.) But, as discussed below, there was no harm.
Harm
If the court determines there was error, we must next analyze whether sufficient harm resulted from the error to require reversal. Jenkins, 468 S.W.3d at 671. Here, appellant claims the trial court erred by not instructing the jury on mistake of fact. Mistake of fact is defined as "a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense." Tex. Code Ann. § 8.02. We assume without deciding error was committed, thus proceed to the harm analysis. See Burdick, 474 S.W.3d at 28.
Preservation
The degree of harm necessary for reversal depends on whether the appellant preserved the error by objection. Ngo, 175 S.W.3d at 743. Under Almanza, jury charge error requires reversal when the defendant has properly objected to the charge and we find "some harm" to his rights. Id. When the defendant fails to object or states that he has no objection to the charge, we will not reverse for jury-charge error unless the record shows "egregious harm" to the defendant. Id. at 743-44.
The trial court has a duty to sua sponte instruct the jury correctly on the law applicable to the case. Guzman v. State, 552 S.W.3d 936, 944-45 (Tex. App.- Houston [14th Dist.] 2018 pet. ref'd.). See Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998). But a jury instruction on a defensive issue is not considered the "law applicable to the case," unless the defense requests its inclusion in the charge or objects to its omission. Guzman, 552 S.W.3d at 945. See Tolbert v. State, 306 S.W.3d 776, 779-80 (Tex. Crim. App. 2010). A defendant cannot complain on appeal about the trial judge's failure to include a defensive instruction that he did not preserve by request or objection: he has procedurally defaulted any such complaint. Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013). Mistake of fact is a defensive issue. Taylor v. State, 332 S.W.3d 483, 487 (Tex. Crim. App. 2011). A defendant preserves error as to a defensive instruction so long as his request or objection conveys the substance of his complaint to the trial court well enough to put the court on notice of the omission or error in the charge. Flores v. State, 573 S.W.3d 864, 867 (Tex. App.-Houston [1st Dist.] 2019, pet. ref'd).
Here, appellant preserved her mistake of fact issue during a charge conference. Defense counsel asked the trial court to insert a mistake of fact instruction into the jury charge, which the court denied. Specifically, the trial attorney requested the following instruction:
But to complete my request, I think I would propose that it consist of, "If you find that based upon -- if you find the defendant's belief was based upon the fact of her religion or custom, then the law would require you" -- and whatever mistake of fact says about -- So it would -- It would say something to the effect of, If you believe that the defendant formed a reasonable belief about a matter of fact, then her mistake in belief; and then it could finish, "would negate the kind of culpability required for the commission of the offense."
Defense counsel argued appellant's mistake was that she believed: "her religious belief and culture allowed her to have a recognized marriage, allowed her 13-year-old to have a recognized marriage in their -- in their custom that is fine." This was enough to put the trial court on notice of what the requested jury charge was, which the judge denied. Because the defense counsel preserved the error, we review the trial court's denial of the mistake of fact instruction under the "some harm" standard. Ngo, 175 S.W.3d at 743. ("Under Almanza, jury charge error requires reversal when the defendant has properly objected to the charge and we find "some harm" to his rights.")
Harm
Under this second step, when, as here, error in the charge is preserved for review, reversal is required if the error caused "some harm." Jenkins, 468 S.W.3d at 671. (quoting Almanza, 686 S.W.2d at 171.) Harm must be evaluated in light of the complete jury charge, the arguments of counsel, the entirety of the evidence, including the contested issues and weight of the probative evidence, and any other relevant factors revealed by the record as a whole. Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013). We must determine whether appellant suffered some actual, rather than merely theoretical, harm from the error. Rodriguez v. State, 524 S.W.3d 389, 391 (Tex. App.-Houston [14th Dist.] 2017, pet. ref'd.) 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).
In the case at hand, there was no harm connected to the failure to instruct the jury on mistake of fact, because of the duality of the jury charge. The jury could choose to convict appellant as a party to continuous sexual abuse of a child for the sexual abuse that the alleged fiancé committed against Jane in Fort Bend County. Alternatively, the jury could convict appellant, acting alone, of committing acts of sexual abuse in Harris County, in addition to the acts of sexual abuse the alleged fiancé committed in Fort Bend County. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) ("It is appropriate where the alternate theories of committing the same offense are submitted to the jury in the disjunctive for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted.")
Here, appellant's mistake - believing "her religious belief and culture allowed her to have a recognized marriage, allowed her 13-year-old to have a recognized marriage in their -- in their custom"- could not negate the culpability for one of the theories of the crime: appellant's own acts of sexual abuse. This mistake could feasibly only negate the culpability for her actions as a party to the offense. Thus, the failure to instruct on mistake of fact was harmless, because her mistake only applied to one component of the charged offense. For these reasons, I concur.