Earbin, Lennie P. ( 2015 )

PD-0715-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/13/2015 8:30:01 PM
Accepted 7/15/2015 4:13:01 PM
ABEL ACOSTA
NO. PD-0715-15 CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TERAS
LEPun EARBIN,
Appellantffetitioner
Vs.
THE STATE OF TEXAS,
AppelIeeAiespondent
APPELLANT9S PETITION FOR
DISCRETIONARY REVIEW
Cause No. 05-14-00508-CR
Court ofAppeals, Fifth District
At Dallas, Texas
Cause No. 219-80478-2012
In the 219th District Cout
Collin County, Texas
Piper McCraw
SBN 24045261
1504 First Avenue
McKinney, TX 75069
(972)767-6369 Phone
July 15, 2015 (972)767-6368 Fax
Emai1: piDer@,mCCraWgantt.com
Attomey for Petitioner/Appellant
IDENTITY OF JUDGE, PARTIES, Anus COtJNSEL
Appellant Lennie Earbin
Trial Judges The Honorable Keith DeanFirstAdministrativeDistrictTheHonorableRichardDavis5100EldoradoParkway,Suite 102 #725McKinney,TX75070
Appe11ant9s Trial Attomey Deric King WalpoleNordhausWalpoleP.O.Box2680McKirmey,TX75070
State9s Trial Attomeys SharmonMllerJustinJohnsonCollinCountyDistrict Attomey9s Office2100BloomdaleRoad,Suite200McKirmey,TX75071
Appe11ant9s Attomey on Appeal PiperMcCraw1504FirstAvenueMcELey,TX75069
State9s Attomey on Appeal Emily Johnson-LiuCollinCountyDistrict Attomey's Office2100BloomdaleRoad,Suite200McELey,TX75071
petition forDiscretionary Review piperMcCraw
Attomey 1504 First AvenueMcKirmey,TX75069
TABLE OF CONTENTS
IdentityofJudge, Parties, andCounse1.....................................................i
IndexofAuthorities..........................................................................iv
StatementRegardingOralArgunent.......................................................iv
StatementoftheCase..........................................................................1
StatementofProceduralHistory.............................................................1
FirstGroundForReview......................................................;..............oI
The Court of Appeals erred in affirming Appellant9s guilt
when there is nothing to show upon which counts jurors'
relied on for the conviction.
Reasonsfior R!eview......................................................................3
Arguments andAthrities...........................................................i
SecondGroundforReview...............................,....................,..............
The Court ofAppeals erred when they failed to address the
insufficiency of evidence issue regarding aggravated sexual
assault of a child by contact of A'ppellant9s genitals to
|complainant9s mouth-through-clothing.
Reasonsf;orR;eview...................................................................6
Argon,eats andAuthorities...........................................................6
ThirdGroundforReview....................................................................9
The Court ofAppealserredwhen they failed to addressthe
insufficiency ofevidence issue regarding the indecency with
a child by contact charge involving contact between
Appellant9s hand and complainant9s genitals.
R!easonsfiorR!eviev......................................................``...........10
ArgunentsandAathorities...........................................................9
FourthGroundforReview.................................................................ll
The Court ofAppeals erred when they failed to address the
insufflciency of evidence issue regarding aggravated sexual
assault of a child by contact of Appellant9s male sexual
organ to eomplainant's female sexual organ through
clothing.
Reasonsfior Revi,ew..................................................................12.
Arguments andAuthorities...............................,..........................1L
'li
Prayer..........................................................................................13
Certificate ofCompliance...................................................................14
CertiflCateOfService........................................................................14
Appendix...................................,..........................,.......................15
Ecz7'bZ®7¬ V. S#czfe, No. 05-14-00508-CR (Tex. App. Dallas, delivered May 12,
2015)(not designatedforpublication)................................................16-29
iii
INDEX OF AUTHORITIES
Cases:
4JJeJ£ V. S#cz¢e, 249 S.W.3d 680, 704 (Tex.App.~Austin 2008, 73OPef.). .... .. .... . .10
J4#f#s!givo#gv. Sfa¬e, 845 S.W.2d 909, 910 (Tex. Grim. App. 1993}. .. . .......6, 10, I2
BrowJe1,. Sfc,fe, 508 S.W.2d 91 (Tex. Crim. App.1974).................................5
Do7ZO7zo i,. Szcz,e, 643 S.W.2d 698, 700 (Tex.Crim.App.1982).........................8
F71CZJ7CZ-S 1,. £fCZfe, 36 S.W.3d 121 (Tex. Crim. App. 2000)................................3
Gwiav. State,72:3 SIN.2,a763,766 ¢cjHtirygReshickv. State, S74 S.IV.2,a558, 57O
{Tex+ Grim+ App+ 1978}+ Cf. A4z'Jes ng+ JS,czJe, 157 T.ex+ Grim+ 188¥ 247 S+Wi2d &9&
(1952).....................,......................................,..............................7
HoopeJ~V. S£cz£e, 214 S.W.3d 9,16-17 (Tex. Grin. App. 2007).......................10
J77eO V. Szczfe, 822 S.W.2d 635, 636 (Tex. Crin. App.1991),..................7,10,12
£z-gfefv. Sfcz#e,15 S.W.3d 104,105 (Tex. Crim. App. 2000)...................6,10,12
A4lcKoy v._ IVoz~£faT CaroZz:7ZCZ, 494 ULSl 433,108 L._ Ed._ 2d 369,110 S. Ct. 1227
(1990)............._.......,.........:........................................_....................5
fl4la£7£Z-Z V. SfC,fe, 852 S.W.2d 520, 521 (Tex. Crim. App.1993)................7,10,12
Pz-zzo i,. Sticzfe, 235 S.W.3d 711 (Tex. Grim. App. 2007).................................3
Sc72CZC7 i,. 4rz-zo7ZCZ, 501 U.S. 624,115 I. Ed. 2d 555,111 S. Ct. 2491 (1991). . . . . ....5
zJfeZ£ecZJSZcz,=es v. ffoJZeJ,, 942 F.2d 916 {5th Cir+ 1991}__+.+_++++++_+++_+++++++++++.++++++3
7rz'ckv. Sfzzfe, 991 S.W.2d 830, 832-833 (Tex. Grim. App.1999)......................3
Wecz£72er/Ord V. £fCZ¢e, 828 S.W.2d 12,13 (Ten. Crim. App.1992). . . .. .......6,10,12
Rules and StatutoryProvisions:
TEX.CoNST.arfe.V,§-1\3......................................................................5
TEX.PEN.CoDE§21.ll.......................................................4, 7,9,12,13
TEX.PEN.CoDE§ 22.021....,...........................................................4,13
Thx. CoDECRIM.PROC. ANN. art. 36.29(a) (West Supp. 2012).....u..-................5
Tex.R.App.Pro. 47.1................................................................6,10,12
TexR.App. Pro.66.3(b}............................................................6, _1_0,12
TexR.App.Pro. 66.3®.....,..................................................,...6,10,12
STATERENTREGARDING ORALARGURENT
Appal-last belie!ves that oral arglrment Would assist this- Court in expHcatien
and disposition of the issues presented in this petition. Therefore, Appellant
respectfully requests oral argument.
lV
STATEMENT OF THE CASE
On April 10, 2014, ajury convicted Appellant ofContinuous Se"al Abuse
ofa Child. The Trial Court sentenced hin to 25 years in prison. QR5: 45; RR6:
43; CR: 112-114). Appellant was found not guilty on Count II. (CR: 115).
Appellant timely perfected his appeal. (CR: 156). On May 12, 2014, Appellant
flled Motion forNew Trial, whi_ch wasov``emlled by_a_peration oflaw_._(CR: 151).
STATEnflEI``IT OF PROCEDURAL HISTORY
After Appe11ant9s conviction was affirmed on original submission, Eczrdz'7Z V. SfCZfe,
No. 05-14-_0050&-CR {Tex. App. Dallas, defivered-May 12, 2015-Xnet designated
for publication), he filed a Petition for Discretionary Review. rio Motion for
Rehearing was filed. This petition was originally due on June ll, 2015, but on
Appe11ant's MStien, t-his Court -exteflded the time -to July 13, 2015, and lit iS
therefore timely filed.
FmST GROtITIun FORREVIEW
TEE COtJRT OF APPEALS ERRED IN AFFIRENG APPELLANT9-S GIJILT
lh7IREN TIRERE IS NOTIHNG TO SHOW UPON WIflCH COUNTS TIE
JURORS' RELIED ONFORTIRE CONVICTION.
JREGUREP¢T
The indictmentretumed against Appellant allegedthe offense ofContinuous
Abuse of a Child with a victim under the age of 14. The indictment alleged the
1
Appellant committedtwo counts ofse"al abuse. In CountI, five differentmanner
and means were ultimately submitted to the jlny for deliberation. The jury
returned a guifty verdicttothe offenseofCoutinuousAbuse ofa Child. There was-
no determination to which ofthe five different manner and means Appellant was
found guilty ofcommitting.
In order to re-nder a -g-uifty verdict -on -the Centin-uous Abuse ®f a Child
charge, the jury must fmd beyond a reasonable doubt that two or more of the
alleged manner and means occurred. Appellant argued on direct appeal that the
evidence presented Lat trial, froWever, Was iastlffi±Cient fo S|ust-a``in a COffviCtien on
three ofthe five COuntS Charged againsthin. QTote: the remaining two counts were
notchallenged on appeal) The three counts challenged were:
A. The indictment alleged -that Appetlant committed aggravated sexual -assault
ofa childby contact between Appe11ant9s genitals and complainant's mouth.
B. The indictment alleged that Appellant committed indecency with a child by
contactbetweenAppe11ant9s hand andcomp±ainaut9s genitals.
C. The indictment alleged that Appellant committed aggravated sexual assault
of a child by contact between Appellaut9s male sexual organ and
cormplainant9-s female sexual-organ.
In resolving the issue, the Court of Appeals did not cite to any dispositive
decision on the issue by this Honorable Court or any other court for that matter.
2
The Court ofAppeals stated.- ccEven ifthe evidence was insufficient tO Support the
acts of aggravated sexual assault, an issue we do not decide, the jury could have
coHVicted apPellaut of con±imIOus Sexual abuse of -a child hased en these
unchallenged acts of sexual abuse", Eczr6z'7e V. Szczfe, No. 05-14-00508-CR (Tex.
App. Dallas, deliveredMay 12, 2015)(not designated forpublication).
This Honorab-Ie Cout -has -rgivcted grorxping a-ggravated sex-tea:I assaults dy
transaction in 7rz-cfr 1,. Szczfe, and held that conduct oriented offenses proscribe
separate and distinct acts of commission. yz-ck I,. S##fe, 991 S.W.2d 830, 832-833
{Tex. Grim. App. 1999}+ Similarly, in PZzcy v; S#ffife, the analysisa made Clear ffiat
the offense ofindecencywith a child is a conduct oriented offense as well and each
act constitutes a different criminal offense. Pz'zzo 1,. Szcrfe, 235 S.W.3d 711 (Ten.
Grim. App. 2007}. Therefore, juror unanimity is required as -to the ccrmmissienof
any one of these acts. Review in this case is therefore necessary and proper
pursuant to Tex R. App. Pro. 66.3(c) because the Court ofAppeals9 decision is in
cenfliet with a deeisien from this courfe, namely Pz'zzcl tz. S£#fe, 23_5_ S.W.3d 711
(Tex. Grim. App. 2007) and Frcz7¬CZ®S V. Sztz£e, 36 S.W.3d 121 (Tex. Crim. App.
2000).
In FJltZZ7CZ'S V+ Sfofe, this Courfuapplied the HoJ/eJ, reasoning, _and found that
the jury7s charge created the possibility of a non-unanimous jury verdict. I:d. c!z
132. U7ZZ-£eCZ Sac,feS v. jJoJJeJ,, 942 F.2d 916 (5th Cir. 1991).The offenses were
3
charged to the jury in the disjunctive and should not have been, as is the case in
this situation. In the instant case, Appe11ant's right to a unanimous verdict was
violated. Appellantwas convicted entheunaninous verdict ofCorltinrous Abase
of a Child, but this ¬cumbre11a" charge was based on five different manner and
means .involving offenses including indecency with a child and aggravated sexual
assaltlt of a child, It is -tlndiSPuted tkat the -offense-S alleged were separate and
distincttransactions occurring at differenttimes, different days, charged in separate
manners and means, and charged from two different offenses in the Texas Penal
Code, specifically TEX. PEN. CoDE § 21.ll and TEx. PEN. CoDE §. 22,021.
Appellant was convicted without a unanimous verdict specific to any ofthe
manners and means charged. It is extremely likely that several members of the
jury convicted Appellanton spedfic marmers.and mcauswhileLSev_eral _Otherjurors_
convicted Appellant on entirely separate manners and means. The possibility of
this occurrence is even more egregious in light of the insufficiency of evidence
urged on direct appeal for three ofthe manners and means alleged by the State out
ofthe five total manners and means charged to the jury. Appe11ant' contends that
this coulf is placed in the position ofspeculation ofthe fact finders9 decisions and
ultimate conclusion ofguilt. It. isa yiolation ofAppellant9s due pro_cess.and right_
to a fair trial by his peers to be found guilty ofan offense that lacks any specificity
or certainty as to which acts the jquy has found him guilty of committing and
4
ultimately leads to Appellant9s conviction ofan 6fumbre11a" crime. As discussed in
Scfeczd v. 47~Z-ZO7CCZ, CCnothing in our history suggests that the Due Process Clause
would permit a State to convict anyone under a charge of cCrine9 so generic that
any combination of jury fmdings of embezzlement, reckless driving, murder,
burglary, tax evasion, or littering, for example, would suffice for conviction.99
£cafed u |4z~z'zoz7CZ, 5.01 U+S. 6247115 i Ed. 2d 55.5,111 S_ Ct_ 2491 (1991). The.
Texas Constitution requires a unanimous verdict in all felony criminal cases. TEX.
CoNST. art. V, § 13; See TEX. CoDE GRIM. PROC. ANN. art. 36.29(a) (West Supp.
2012). A unanimous j_ury verdict ensures that the j_ury agrees on the factual
elements underlying an offense - it is more than mere agreement on a violation of
a statute. McKey v. IVor£73 Ccz7~O/I-J2CZ, 494 U.S. 433, 108 L. Ed. 2d 369, 110 S. Ct.
1227 (1990). The unanimi:ty requir_ement.is undercutwhen.ajury risks convicting
the defendant on different acts, instead of agreeing on the same act for a
conviction. I;d.
The. Appellant is-entitled toa unarirmo:usverdict on each ofthe> five marmer
and means he has been charged with committing. Brow7Z V. Szczze, 508 S.W.2d 91
(Tex. Grim. App. 1974). Chaly then, if convicted on two or more marmer and
means, -should-the Appellant be faced with the conviction for C®ntirmous Abuse ®f
a Child.
S_ECOJ>m GEOImun FO_RREVIEW
5
TIRE COURT OF APPEALS ERRED V7ImN TIREY FAILED TO ADDRESS
TIE INSUFFICIENCY OF EVIDENCE ISSUE REGARDING AGGRAVATED
SE2flJAL ASSAIJLT OF A CImD BY CONTACT OF APPFLLAI9S
GENITALS TO CONILAINAnITS MOUTIITImOUGH CLOTENG.
ARGtJRENT
Appellant. was .charged with _aggravated sexual .assault^ of _a child by _contact_
between Appe11ant9s genitals and complainant9s mouth. The only evidence to
support this allegation was contact occurring through clothing. There is absolutely
no testimony or evidence, in the record to sappolf or dermnstrate|that Appeflant's_
male sexual organ (by bored genitalia) ever made direct contact with the
complainant9s mouth. Aggravated sexual assault, specifically by contact between
Appe11ant's mouth tocomPlainant's moth, carmot be sustained based on Contact
through clothing only.
In light of the Cout of Appeals decision on the first ground (above), this
-issue was HOt addressed. Review is- proper pursuant to Ten R. App. Pro. 66.3(b}
and Ten R. App. Pro. 66.3®. in addition, pursuant to Tex. R. App. Pro. 47.1, the
Cout ofAppeals are required to review every argument raised by a party that is
necessary to disposition of-that appeal. Tex. R. App. Pro. 47.1; £Zgife v. Szofe, 15
S.W.3d 104, 105 (Tex. Crim. App. 2000); 47~JacSfro7Cg 1,. Sficzfe, 845 S.W.2d 909,
910 (Tex. Grim. App.1993); 7precz£7ze7/IO71CZ v. £fczfe2 828 S.W.2d 12213 (Tex. Grim.
App. 1992); Ma,7eZ'Z V. S£cz¢e, 852 S.W.2d 520, 521 (Tex. Grim. App. 1993); jz78O V.
Sfcztie, 822 S.W.2d 635, 636 (Tex. Crim. App.1991).
TEX. PEN. CoDE §-21.ll, the statute for indeceney with a child, father
clarifies this in Part cc(C)" by Stating C¢In this section, ¢¢sexual contact" means the
following acts, ifcommitted with the intent to arouse or gratify the sexual desire of
any person: (1)any touching by a per-son, including touching throw-gh clothing, of
any part ofthe genitals ofa child; or a3) any touching ofanypat ofthe body ofa
child, including touching throuch clothing, with any pat of the genitals of a
person." TEX. PEN.CODE-§ 21.11{c)(1},{2}.
The reasoning behind allowing c¢sexual contact" to include cctouching
through clothing99 was addressed by the Court ofCriminal Ai,peals in Ga,i-cz 1,. Sfczfe
and stated that ccthe mere inteaposit-ion ofa layer offdic between a person's fiand
and the genitals of another did not prevent the occuITenCe Of Sexual contact
because the touching will still engender the sense of feeling perceived by the
person touched." Gg#¢crv; S#fffe, 723 S.W.2d 763, 766 (Citing ReSJdefaV; S£c#e, 574
S.W.2d 558, 570 (Tex. Grim. App.1978). Cf. A4z'JeS v. S1#cz,e,157 Tex. Crim. 188,
247 S.W.2d 898 (1952) (no requirement of flesh to flesh contact in offense of
fndling).
This definition for Ctsexual contact" is strictly limited for application to
offense ofindecency with a child by the words cain this section" though, and this is
7
distinguishable from the offense of aggravated sexual assault. We must assume
that if the Legislative intent of aggravated sexual assault was meant to include
ccthrougfr clothing" then the language- would kave been inchaded or the statute
would have included the very specific defr]ition of c6contact" as done in the
indecency with a child statute. This intentional omission by the legislature
addresses the fact that {tthaough the clothing" is not part ofthe aggravated seeF[Ial
assault offense or any ofthe pertinent definitions.
The Court ofCriminal Appeals has taken a distinguishing position regarding
contact -be:tWeen a Pat of the genitals of one pefsen and the ffiouth>of amofher
person. In Do7¬OJzo v. S,crfe, the Court of Criminal Appeals held that under the
definition of cdeviate sex intercourse9, CCany contact between a pat ofthe genitals
ofone person and the moutl ofanother person contemplates ... either penetration
of the mouth by bared genitalia or placing the mouth directly o7¬ genitalia of
another hlman being. [T]he conduct of appellant [, whose contact with genitalia
was through a layer of clothing,I did not censtitu±e an act of deviate sexual
intercourse within the meaning of ... See. 21.01(1)." Do7ZOfeO V. Sztzfe, 643 S.W.2d
698, 700 (Tex.Crim.App. 1982).
Contact between Appe11ant9_s genitals .and complainant'_a mouth througk
clothing only, when charged as aggravated sexual assault, does not support a
finding beyond a reasonable doubt because the statute does not provide for
8
touching through clothing. Further there is no binding case law to support a
conviction based on contact by mouth to genitals through clothing. The only
tot[ching ofmouth to genitals-must occur thaougk barer genitalia. Had the State
charged Appellant with the offense ofindecency with a child by ccany touching of
any part ofthe body ofa child, including touching throuch clothing, with the anus,
breast, or any Part ®fthe -genitals ®f a -Person, it iS POSSible that the jt]ry, -the fact
finders in this Case, 'COuld have found beyond a reasonable doubt that Appellant
committed the offense of indecency with a child because the indecency with a
child stattcte permits_ the c¢coEtact" t® OCCur th]=ougk _clothing. TEE. PEN. CoDE §
21.ll(c)(2). However, this was notthe offense with whichAppellantwas charged.
TIIIRD GROtmun FORREVIEW
TIE COURT OF APPEALS ERRED iVHEN TREY FAILED TO ADDRESS-
TEE INSUFFICIENCY OF EVIDENCE ISSUE REGARDING TIRE
INDECENCY VITH A CIHLD BY CONTACT CIIARGE INVOL\mrG
CONTACT BETlrmEN APPELLAIIT9S IIAir``D AI``ro COMPLAINAV'S
GENITALS.
ARGtJRENT
Appellant was ``charge_d by indietmeut for indecency with _a_child by _con±asl
between Appe11ant's hand and complainant's genitals. There is no evidence to
supportthat Appe11ant9s hand evermade contactwith complainant's vagina.
9
In light of the Court of Appeals decision on the first ground (above), this
ground was not addressed. Review is proper pursuant to Tex R. App. Pro. 66.3(b)
and Ten R. App. Pro. 66.3(fy. In addition, pI]rSuant to Tex. R. App. Pro. 4.7.1, the
Court of Appeals are required to review every argument raised by a party that is
necessary to disposition ofthat appeal. Tex. R. App. Pro. 47.1; I;z-g7zf v. Szczfe,15
S.W_3d 104, 105 (Tex+ Grim. App. 2000}; J4z^zzzs:zroz¬g v. _Sfcz#e, _845 S.W_2d 9_097
910 (Tex. Grim. App. 1993); Wecz£feer/o71d 1,. S,cz£e, 828 S.W.2d 12, 13 (Tex. Crim.
App. 1992); Mg,7eZ-Z 1,. Sfcz£e, 852 S.W.2d 520, 521 (Tex. Grim. App. 1993); J7neO V.
Sfcz£e, 822 S.W2d 635,636 I(Tex_ GrimApp._ 1991)..
Complainant emphatically states that Appe11ant's hand never touched her
vagina. Any conviction on this allegation would be based onmere speculation and
is completely unsupported by any factsandevidenc_e+
ccJuries are not permitted to come to conclusions based on mere speculation
or factually unsupported inferences or presumptions." Hoaper, 214 S.W.3d 9, 16
(Ten. Grim. App. 2co7}. 6CA cone]usion reached by speeufation ... is not
sufficiently based on facts or evidence to support a finding beyond a reasonable
doubt." Jd. Even proofthat amounts``to a strong suspicion or probability ofguilt is
insufficiemt to sustain a coflvictien. 4J7e7Z V,. S£#fe, 249 S.W.3d -680, 704
(Tex.App.-Austin2008, no pet.).
10
On the record, it is clear that the jury was not rationallyjustified in finding
beyond a reasonable doubt that Appellant committed the act of touching the
co_mplainaut's genitals wifl Appeuaut9s _hand. instead, the evidence shows .that
Appellant touched the complainant9s thich and the area around the complainant9s
genitals. The evidence was speculative, at best, and throughout I;oth of the
complainant'a _forensic interviewsLand the COmPlainant'a_testimony during the _trial,
the complainant is adamant thatAppellant did not touchhervagina.
FOURTH GROtnm FORREVIEW
TIE COtJRT OF APPEALS ERRED ln#EN TREY FAILED TO ADDRESS
TIRE INSUFFICIENCY OF EVIDENCE ISSUE REGARDING AGGRAVATED
SEXUAL ASSAULT OF A CIELD BY CONTACT OF APPELLAr``IT9S MALE
SE3HJAL ORGAN TO -COREIJAThIANTS FEn¢AIJE SE2HJAL ORGAN
TImOUGH CLOTHING.
ARGUMENT
Appellaffit was charged withthecommission ofaggravated sexual assatIItof
a child by contact between Appellant9s male sexual organ and complainant9s
female sexual organ. The only evidence that alludes to this allegation stems from a
vague reference to AppeIlant's ccbody pat" rchbing on compla-inant9s -vagina,-
however, the ccbody part' is never described with any specificity or further
describtionto indicate that the part referenced is Appe11ant9s male sexual or_gen. In
ll
addition, the only contact between Appellant9s male sexual organ and
complainant9s female se"al organ alleged to have occurred is through clothing.
This-aggravated sexual assault allegation cannot be sustained based en contact
betweenthe sexual organs whenthe only contact occurred through clothing.
In light ofthe Cout of Appeals decision on the first ground (above), this
grotmd was -not adore-ssed. R£v``i-ew i-s proper pursuant to Tax R. App. Pro. 66.3{b}
and Tex R. App. Pro. 66.3®. In addition, pursuant to Tex. R. App. Pro. 47.1, the
Court of Appeals are required to review every argument raised by a party that is
-necessary-to disPesitien offfi``at appeal. I-ex. R. App. Pro. 47.1; ££gfaf rty: S£cF¢e-,15-
S.W.3d 104, 105 (Tex. Grim. App. 2000); 47-"SgivOJ¬g V. Sfczfe, 845 S.W.2d 909,
910 (Tex. Crim. App.1993); WeczzJ2er/O7,CZ v. Szczfe, 828 S.W.2d 12,13 (Tex. Crim.
App. I992* fl4inZz v. S#tzze, 852 S.W.2d 520, 521 {Tex. erin. App. -1993),-J7%CJ V.
Sfczfe, 822 S.W.2d 635, 636 (Tex. Crim. App. 1991).
We must assume that, ifthe Legislative intent of aggravated sexual assault
was meant to include {cthrotlgh elething", the the lapgI±age W;u±d faaVe been
included. TEX. PEN. CoDE § 21.ll(c) explicitly states {.cln this section, ccsexual
contact" means the following acts, ifcommitted with the intent to arouse or gratify
the sexttal desire ®f arry person-. {1} a-ny fottching -by a person, inc±-uding touchi-n-g
throng]1 Clothing, ofany pat ofthe genitals ofa child; or (2) any touching ofany
part ofthe body of a child, including touching throuch clothing, with any part of
12
the genitals of a person." TEX. PEN. CoDE § 21.ll(c)(1),(2). This definition for
sexual contact is strictly limited for application to indecency with a child by the
legislature -because ofthe explicit langtrage ofcointhis section". TEx. PEN. CoDE §
21.ll(c)(1),(2). Ifthe legislative intent had been to apply the definition ofccsexual
contact" and to include cctouching throuch clothing'; to the offense of aggravated
sexual assault, then- the langt±age would hoverbeen Clearly flcifed and irfeated to
encompass the offense of aggravated sexual assault under TEX. PEN. CoDE §
22.021.
PRAYERFOREEL-IEF
Appellant respectfully prays that this Court grant discretionary review and,
after full briefmg on the merits, issue an opinion reversing the Court ofAppeals9
j_udgmeut and remanding the-cansetotkeLtrial couat forane:wtrial.
Respectfully submitted,
/s/PiperMcCraw
PiperMcCraw
Bi±r Cardbto. 24.045261
PiperMcCraw, P.C.
1504 First Avenue
McKinney, TX 75069
(972)767rd369 Office
(972)767-6368Fax
piperenccrawgantt.com
Attomey forAppellant
13
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. App. P. 9.4(i)(3), undersigned counsel certifies that this
briefcomplies with the type-volume limitations ofTEX. R. App. P. 9.4(i).
1. This briefcomplies with the type-volume limitation ofTEX. R. App. P.
9.4(i)(2)a) because this briefcontains 2, 913 words, excluding the parts
ofthe briefexempted by TEX.R_App.P. 9._4(iX1I
2. This briefcomplies with the typeface requirements ofTEX. R. App. P.
9.4(e) and the type style requirements ofTEX. R. App. P. 9.4(e) because
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er McCraw
Piper McCraw
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that atrue and correct copy ofthe
fioregoing petition for Discretionary Review was servedon thisthe 13th day of
July, 2015 via the service function in eFile Texas on the attomeys for the State:
Emily Johnson-Liu, Assistant District Attomey, Collin County, Texas at eiohnson-
liu@,co.collin.tx.us and daa:ppcals@coIIincounty.tx.gov.
/s/ Piner McCraw
Piper McCraw
14
APPENDK
15
AFFIRM; and OpinionFiled May 12, 2015.
In-e
Cou|rfof|ZL:ppea|s
ffifdlD|f=tr|c*ofTexaf5a¬Dallas
No. 05-14-00508-CR
LENI``RE P. EARBIN, Appellant
V.
TIE STATE OF TEXAS, Appellee
On Appealfrom the219th JudicialDistrict Court
Collin County, Texas Trial Court
Cause No. 219-80478-2012
IVIEMORANDUM OPINION
Before Justices-Francis, Long-Miers, and lhthitehiH
Opinionby Justice Long-Miers
Appellant Lennie P. Earbin pleaded not guilty to the offenses ofcontinuous sexun.1 abuse
ofa child and indecency with a child, both involving his step-granddaughter. A jury convicted
appellant ofcontinuous sexual abuse ofa child, but acquitted him ofindecencywith a child. The
cout sentenced appellan:t to serve 25 years in prison. h three issues, appellant complains that
the trial j_udge wrongly instructed the venire,_ the evidence is insufficient to support the
conviction, and there was error in the jlny Charge. We affirm the trial court9s judgment. We
issuethis memorandum opinionbecause the issues are settled. TEX. R. App. P. 47.4.
-FACTUAL'BACKGROunlrm
At the time oftrial, JH was 14 years old. She testified thatwhen she was around 10 or ll
years old, she lived in an apartment with her mother, who was there on and off; her m'atemal
16
grandmother Q``Tana); her matemal great grandmother (Grandma); and appellant, who was Nana9s
frusband and JH9s step-grandfather. Grandma mostly stayed in her room watching television
with the door closed. Nana was a home health nurse and was gone a lot. JH9s mother was also
gone a lot doing her ccorm thing"; she gave custody of JII to Nana. Sometimes JII was home
alone with appellant and Grandma, particularly after school.
JII testified that the first thing she remembered appellant doing ccwas putting a grape in
his mouth and giving it to me from his mouth[.I" She did not think there was anything wrong
with that and told Nana. Nana did not say anything, but appellant told JII that was ccour little
secret" and she should not tell people about it. Then she said appeuant would sit in a chair and
make her sit in his lap c¢and I would be moving and stuff.99 She sat ccstraddle[ed]" appellant,
ccsitting the opposite direction like face-to-face.99 She said if appellant ccgot excited,99 his penis
ccwould go up" and she said she felt it c6against my butt," CCrubbing against my butt." This
happened throuch their clothing. JH said appellant breathed ccreally hard99 when that was going
on. JII testified that sometimes appellant ccput me on the bed" and closed the door. She said he
touched her with his hands on her thists and ccbutt" and ccright before my vagina." She said it
happened ccmany" times, ccfor areally long time, for years." She said appellant touched her in the
garage, living room, and in her bedroom. When he was on the couch in the living room, he
would pull JII c6towards him over and _over again fo, -I guess, feel." She said she fall his penis
ccrubbing against my butt." She also testified that appellant touched her ccbutt" with his hand
throughherunderwear.
Ill also testifiedthat On abouttwo OCCaSiOnS aPPelrant ftyushedme lil Iwas on myknees
and he put my face dorrm there, and he would make me rub my face on him.99 His hand was on
the back ofher head, moving her head while she struggled to get away. She felt his penis with
17
her nose and mouth, over his underwear. And she said appellant would also grab her hand and
put it c{dorrm there overhis clothing." She said she could feel his penis withherhand.
JII talked about times in her room when appellant tied a blanket to the upper bunk bed
and draped it cclike curtains." He got on one side ofthe blanket and JII was onthe other side. He
told JII to cat,ire the part ofthe blanket that was up hich that poked out or something." She said
this happened many times and sometimes they were on ccdifferent sides" ofthe bunk beds. She
said she would c6end up having to bite whatever part it was[.]" She said she did not know what
he made her bite. He told JII itwasjust-a game andnot to tell anyone.
JII testified that all this sexual contact was through clothing. And when she was asked
whether appe11ant's penis ever touched her vagina, she said no. She said she never felt
appellant9s penis onher vagina or near hervagina.
JH testified that she loved school and it c¢was freedom for me from coming. home and
being touched." One day in late Apri12011 when JII was withNana, she told Nana about some
ofthe things appellant had been doing to her. JII said cc[i]t was extremely hard" to tell,Nana,
because -tfiat was ``her-husband. But she felt tcrelieved" after she told. She``said she ``wascloserto
Nana than her mother, but Nana started acting ccdistant" to JH. JII said she eventually told her
mother, who calledthe police, and an investigationwas started.
In June 20±1, appellant senthis step-dauch:tor, JH9s mother, atext message stating:
Good Morning Mininia! Last night I called my wife and came clean about what
happen [sic]. Now I9m apologizing to U and [JH] if U will allow me 2. I did
touch [JH] in in inappropriate way, and I9m sorry. I do not want to minimize
what I've done but u need [sic] it was not for no long period oftime. Ifu like I
can call u and look at u face 2 face to apologize next time I9m home. I know that
what ever [sic] relationship we had has -been destroyed -by me and I9m deeply
sorry. I pray that u can find it inu r heart to forgive me somewhere inthe future.
I realize I need help! I9m asking God almighty to help all ofus througll this time
ofheartache. I Love U, [JIH, and Jo-Jo!!I For real! PaPa!!I
18
At some. point, JII leamed that appeuant was being accused of raping her. She said
appellant did not rape her, he molested her. She agreed to make a recording in which she
recantedlthe accusations; she said she did it for Nana. But she said she felt terrible afterwards
because she lied on the recording. She said everything that she testified about in trial that
appellant didto her was true.
SIJFFI¬IENCYOF TEE EvIDENCE
In issue two, appellant argues that the evidence is insufflCi;nt tO Support the conviction
for continuous sezri]al abus; ofa child.
standardofReview
when an appellant challenges the sufficiency ofthe evidence to support a conviction, we
review all the evidence in the light most favorable to the verdict to determine whether any
rational trier offact couldhave foundthe essential- elements ofthe offense beyond a reasonable
doubt. J7z'se v. Sfc,,e, 364 S.W.3d 900, 903 (Tex. Grim. App. 2012). Evidence is sufficient if
c¢the inferences necessary to establish guilt are reasonable based upon the cimulative force ofall
the evidence when¬ensidered in the -1i-ght most -favorable tothe verdict." j¢;. Ifthe -evidence is
conflicting, we cccpresume that the factfinder resolved the conflicts in favor ofthe prosecution9
and defer to that determination.99 JZZ. (quoting tJc!cdso73 V. 7rz-rgz-72Z-CZ, 443 U.S. 307, 326 (1979)).
This_standardis_thesameLfor b``OthdirectandCircumstantial_eridenQeLI;d
Analysis
Aperson commits continuous sexual abuse ofa child if:
(1) during a period that is 30 or more days in duration, the person commits two
ormoreacts of-sexual``abuse . . .,--and
(2) at the time ofthe commission ofeach ofthe acts ofsexual abuse, the actor is
17 years ofage or older andthe victim is a childyounger than 14 years ofage.
19
TEE. PENAL CoDE ANN. § 21.02(a) (West Supp. 2014). The jury is not required to agree on
which specific act of sexual abuse the defendant committed; it is sufficient ifthe jlny agrees
c6that the defendant, during a_period that is 30 or more days in duration,. committed two or more
acts of sexual abuse." jiJ. § 21.02(d). A child9s testimony alone is sufficient tO Support a
conviction for continuous sexn]al abuse of a child. TEX. CoDE GRIM. PROC. ANN. art. 38.07(a)
{West Stxp- 2-014},
cc[A]cts of sexual abuse" for purposes Of COntinuOuS Sexual abuse of a child include
indecency with a child and aggravated sexual assault of a child. TEX. PENAL CoDE ANN. §
21.02(c)(2}, (4). The State sought to prove appellant committed continuous sexual abuse of a
child through flVe different acts Of Sexual abuse. Two of those acts of sexual abuse were
aggravated sexlral assault of a child by sexual-organ-to-sexual-organ contact and by contact of
the child9s-mo:tlth-toapPedlant9a sext[al-or-gas. See z'#. § 22.-02l{aXIX-BX-i-i-i)&{v}. The ¥emaini-ng
three acts of sexual abuse were indecency with a child by contact ofthe child9s buttocks with
appe11ant's sexual organ, the child9s genitals with appe11ant's hand, andthe child9s handwithpart
ofap_pe11ant3s genitals. See z'd. _§ 21.ll(a)(1),. (c) (West 2011).
Appellant argues that there is no evidence to support the two acts of aggravated sexual
assault of a child and no evidence to support one of the acts of indecency with a child-by
contact of the child9s genitals with appe11ant9s hand. Appellant does not challenge the
sufficiency ofthe evidence withrespectto the othertwo acts ofindecencywith a child, that is, by
contact of the child's buttocks with appellant's sexual organ and the child9s hand with part of
appe11ant's genitals.
We have reviewed the record with respect to the two unchallenged acts of sexual abuse.
The child testified that appellant made her sit on his lap and she felt his penis on her buttocks.
She also testified that appellant forced her hand on his crotch and she felt appellant9s penis
20
through his clothes. Even if the evidence was insufficient to support the acts of aggravated
sexual assault, an issue we do not decide, the jlny COuld have COnViCted aPPellant OfCOntinuOuS
sexual abuse ofa child basedon these unchallenged acts,of sexual abuse. We resolve issue two-
against appellant.
JuDICIALCoMnfflNTSDtmINGVomDIRE
In issue one, appeIIant argues thatthe that court gave wrong instructions to the venire and
violated his righi to be presumed irmocent. The State argues that appellant did not preserve this
issue for review because he did not object when the comments were made and, even ifhe had,
there was no ``eH=or. Appellan± concedes he did net object, but argues -that m -objection was
requiredbecause the instructions constituted fundamental eITOr.
Standard ofReview
Ordinarily apartymust object at the time alleg.eddy improperj_udicial comments are made
to complain about those comments on appeal. U72faCZrf V. Sftzfe, 400 S.W.3d 94, 99 (Tex. Grim.
App. 2013). We review an allegationthat atrial court made improper comments during voir dire
as a question oflaw. see Dew C72eJce. Co. v. jI;cr#cz-J, 46 S.W.3d 237, 240 (Tex. 2001). And we
review those comments in the context ofthe entire voir dire examination. See J7g re Cozrez72Z'twCe73f
a/77,'r,z, 451 S.W.3d 462, 470 (Tex. App.-Houston [14thDist.I 2014, no pet.).
The Comments
At the beginning ofvoir dire, the trialjudge gave several opening remarks and explained
the voir dire process. He gave examples ofhowjurors must followthe law even ifthey disagree
with it. He also gave examples ofanswers that make lawyers ccnervous," such as when a person
has a strong religious or moral belief that camot be set aside, because something similar has
happened to the person or a finily member, or because the person disagrees with the law and
21
refuses to followthe law. Then thejudge gave an example to the venire about howthey do not
knowanything aboutthe casethey are aboutto hear:
Let me give you an example about how you don9t know anything about this case.
FVenire memberl.
IVENIRE MEMBER]: Yes, sir.
THE COURT: lhthere are you? There you are. Oh, you can keep your seat, that9s fine.
Youwork at ParkPlace Lexus over in Piano; is thatrich:I?
prENR±MEMBERl: Thatiscoffect,sir.
TIIE COURT: Well, youknow afriend ofmine Craig Ellis. Youknow Craig?
IVELunE MEMBER]: I knowthe name. I don3tworkwithhim directly.
TIIE COURT: Okay, a prince ofa guy. I knew himwhenhe worked at another
dealership. I recent-ly sold -my car and -got adifferent,car and -now I9,m thinking
about selling my wife9s car and getting a different car. Would you like to buy my
wife9s car for $15,000?
[vENIRE MEMBER]-. Doin9t know anything about your wife9s car. I would have to
look at it, sir.
THE COURT: Let me tell you a little bit aboutit. The first four letters ofthe type of
car, the make ofthe car is [sic] M-e-I-c. Are you Tea-dy?
FffiNRE REMBER]: Yes, sir.
TIE COURTi Youw_anllo_bnyj.I.2
IVENIRE MEMBER]: No, sir.
TIE COURT: AIL right. It9s a 2007-. Are youreadyto buy it?
IVENIRE MEMBER]: No, sir..
THE COURT: All richt. It9s got 39,000 miles. Pretty lowmiles for a2007.
[VENIRE hffiMBER]: Thatis correct.
TIIE COURT: Are youreadyto buy it?
IVENIRE REMBER]: I'm curious.
22
TIIE COURT: You9re curious. lhthat you9re trying to do right now is decide is
it a Mercury or is it a Mercedes. Okay, youknow more aboutmy wife3s car than
you know aboutthis case. So what9s yourverdict inthis case?
IVENIRE REMBER]: I don'thave one, sir.
TIIE COURT: All right. You don't evenknowwhetherthis is a criminal case or
a civil case where people got in a car wreck and somebody got injured or
contracts or a family divorce case. You gotno idea, do you?
[VENIRE MEMBER]: No, sir, I'm in a State ofTexas courtroom. That9s all I know.
TEE COURT: That9s all you know. I promise you at the end ofthis pat ofthe
trial about this case you911 know absolutely the same amount as you know right
now, and you9re not willing to buy that car because youjust don9t know enough
about it.
FffiNIRE RffiMBE-Rl: That9-s-c®ffect, -sir.
TIIE COURT-. You may have heard some things you think, hun, I9m starting to
draw some conclusions. I9m more interested than I was before but I7m not going
to'dare --you9d be sillyto tell me you9dbuyher car; wouldn9tyou?
IVENIRE MEMBER]: I would agree withyou,
THE COURT: Okay. Just like it would be silly to ask you what your verdict
would be in this case until you hear the evidence in this case. So no one is going
to askyouwhat yourverdict is. Everybodyis going to askyouto followthe law,
okay. You should have boucht her car, because I9m the one that drove the
Mercury and s.he9s the one that drives the Mercedes.
[vENIfuMEMBER]: Good choice.
TIIE COURT: But even thouch it mish:I have been what yori would have done until
youknow about it it9sjust foolishto do somethinguntil youknowabout it.
IVENREir4EMBERt: I agree,sir.
THE COURT: Just like it9s foolish to say what you will or will not do in this case
until youknowabout it.
Appellant argues that cc[t]he discussion continued and involved several panel members
being asked direct questions by the givdge. +Cine of those involved a vedre member-who -was
asked whether he could convict based solely onthe testimony ofa child ifhe believed the child
beyond a reasonable doubt. Earlier, the venire member had expressed concem that it was ccone
23 I
person9s word against another person9s word" and agreed with another venire member that CCthe
bar is set fairly high" ccwhen that is the only piece of evidence that you have.9' The judge was
attemptingto clarifythe venire member's earlier answer and said:
IVenire member], let me make sure you9re not changing the question. The
question is youbelieve the child beyond areasonable doubt and you7re convinced
beyond areasonable doubt ofaperson9s guilt. Not would you be but after you9ve
heardthe evidence you are.
[The prosecutor] was asking if you9re convinced beyond a reasonable doubt
would you fmd them guilty and you said, well - you forgot about the part about
you9re convinced beyond a reasonable doubt and went straicht to the pat there9s
one witness and left offthe patbeyond areasonable doubtyou9re convinced.
Btlt ifyou Say I9-m never going to -her convinced, I9m met even -going -to keep-an
open mind then that's one thing. But ifyou say I911 keep an open mind but Pm
telling you it9s goingto be difficultWell, that9s fine.
Iwouldholpe nobodywould say, oh, tt's going to be easyfor me to find somebody
gu:ilty. It ought to be difficult. It ought to be difficult to find somebody nat guilty.
J£Jir er cJzJffiffzc¬aIZfjch. You've got tar really fceus- oH theevidenee-and determine in
your olmmind whether you9re convinced.
@mphasis added.)
The v]enire _member .expressed coneem that cc_it7s- going to _be very, very _diff1_Ced± _tO_
convince me if it's one person's word against another person9s word.99 The judge reminded the
panel that no onehad said anything about anotherperson9s word, and said:
I know it9s hard not tojump ahead butjust like the man who didn9t want to buy
my car and now he kind of does, youjust got to wait to hear everything. You
can9t draw conclusions before you know what the evidence is because at this
pointyou still haven9theard the evidence.
Analysis
Appellat argues Lthat the jedge9s insfroedons were improper -because he CCsfrould have
first Stated that [aPPe11aut] is presumed innocent." He cofltends that the judge9s CCinitial
explanation" that was c6hammered home with the . . . real-world example, asked thejurors to put
24
themselves into a specific factpattem, andhold offinmaking a determination onthe defendant's
guilt or irmocence." But at the point where the judge gave the car example, the judge had not
told the venirethat the case ontrial was a criminal case. Shortly after giving the car example, the
judge informed the venire that the case was a criminal case and instructed them on the
presumption ofinnocence:
Let me explain some things that apply in every case where a'person is charged
witha crinlinal offense. Every-well, everythinghasto start somewhae. Vthere
a trial starts in a criminal case is the presumption of innocence. Just like you
leamed in eighth grade civic9s [sic] class. Everyone is imocent until proven
guilty or unless proven guilty.
Now, how do you prove somebody guilty?`` The prosecutor has to present
evidence. They2ve gotthe -burden ofproofto pieseutevi'dencethatconvincesyou
beyond areasonable doubt ofaperson9s guilt.
If after you9ve heard the evidence you are convinced to your orrm personal
satisfactionthat you do not have a reasonable doubt as to aperson3s guiltthen the
law requires you find them guilty. Ifonce you hear the evidence you think either
I9m convincedthey didn9t do it or I9mjust not sure they did it. I9m not convinced
they did it. I9m not convinced beyond a reasonable doubt. If you9re not
convinced beyond areasonable doubtyou9re requiredto findthem not guilty.
Andthen laterinvoir dire afterthe exchange -betweenthejudge andthe venire member
about a child as the sole witness, thejudge explained:
Butwhatwewant everybodyto do isjust sayI'm goingto waituntil Ihearthe evidence.
You asked me will I find aperson guilty. I have no idea until Ihear the evidence.
Would I find them not glrifty. Well, I havene idea until I hear-the~evidence. I9m
going to presume that they9re not guilty to start offbecause I haven9t heard any
evidence. I9m only goingto switchthat presumption where I find them guilty and
get rid ofthat presumption once I hear enouch evidence to convince me beyond a
reasonable doubt. Up until then I9m goingto presume him not guilty.
AppeIIant concedes-that thetrialjudge ccwenton to definethepresumption ofinnocence,"
and that he and the State had an opportunity to discuss the presumption with the venire. But he
25
contends that the venire was ¢calready prejudiced by the trial judge9s erroneous instruction and
real world example upon whichto base their decisions throughout the trial."
WJe ``haVe reviewed the¬OmPlained-ofjudicia-I -ccmmen-ts -i-n theContext-of-the entire VGir
dire and have found no support for appellant9s arguments. We conclude that the trial judge9s
comments did not infiinge upon appe11ant3s rich:t to be presumed irmocent and that an objection
was required to preserve a complaint on this issue. Because appellaut did not object, this issue
presents nothing for our review. We resolve issue one against appellant.
THE JuRYCHARGE
In issuethree appeI±ant argues thatthejury charge contained reversi-ble error -because the
definition of indecency with a child did not contain the language ccincluding touching through
clothing."
Standard+ofReyierty
In our review ofallegedjury charge error, we first determine whether the charge contains
error. Bczrrz-as v. Srtzfe, 283 S.W.3d 348, 350 (Tex. Grim. App, 2009). Ifit does, then we must
determine whether the appellant suffered harm. JZZ. Because appellant concedes he did not
object to the jury charge on this basis, we examine the record for evidence of egregious harm.
jiJ. ccErrors thatresult in egregious harm arethose that affect cthe very basis ofthe case,9
i
cdeprive the defendant of a valuable right,3 or Cvitally affect a defensive theory." IVgo i,. Sfczfe,
175 S.W.3d 7383 750 (Tex. Grim. App. 2005) (quoting Ha,fc73 17. Sfczze, 922 S.W.2d 166, 171
(Ten. Crirm. App. 1996), overruled on other grounds by Gelinas v. State, 398 S.W.3d 703 (rFex.
Grim. App. 2013)). We assess harm in light ofthe entire jury charge; the state ofthe evidence,
including contested issues and the welch:I of the probative evidence; the arguments of counsel;
26
and any other relevant information revealed by the record as a whole. O/I-vczs v. Sfczfe, 202
-S.W.3d 137, 144 grex. Grim. App. 2co6).
Analysis
inthe statute defining indecency with a child, the legislature defined ccsexual contact" to
inch±de touching throustcbthing. "x. PENAL CoDEAEN. §21.11(c}. Thejurychargeinthis
case defined ccsexunl contact" intwo differentplaces; one contained the language c¢including
touchingthrough clothing" and the other didnot.1
Appellanl QOntendS that the failure to include the language ccinchrding touching througfr
clothingJ9 inthe definition ofindecencywith a child causedhim egregious harm because
ccaggravated sexual assault does not permit a conviction based on . . . contact through clothing."
He also argues that it could have caused thejuryto be confused about the difference between the
allegations of indecency with a child and aggravated sen]al assault of a child and could have
caused thejuryto convict based on acts ofsexmal abuse for whichthere was no evidence.
Assuming this was error, we conclude that appellant did not suffer egregious harm.
We have said that aggravated sexual assault ofa child may be through clothing and reject
appellant's argument that the jury could have been confused about the difference between the
two offenses based on the failure to include the language ccincluding touching throuch clothing."
See JJJczSIfczr,z'7!eZ 1,. Sfczfe, 452 S.W.3d 874, 879-80 (Tex. App.-Dallas 2014, pet. ref9d).
Additionally, we previously concluded that the evidence was sufficient to support the verdict
based on the allegations of indecency with a child alone. As a result, the jury's verdict is not
based on acts of sexual abuse for which there was no evidence. We conclude that any error in
thejury charge was notharmfi]1. We resolve issue three against appellant.
27
Tin thejury charge on continuous sexual abuse ofa child, thejudge listedthe following acts ofindecency with a child without stating
thatthe sexual contact could be through clothing:
intentionally or knowingly, with the intent to arouse or gratify the sermal desire ofany person, engage in semal contact by
touching the buttocks of [JH], a child younger than seventeen (l7) years of age and not the spouse ofthe defendant, by
means ofdefendant7s male sexual organ;
intentionally or knowingly, with the intent to arouse or gratify the sexual desire ofany person, engage in sexual contact by
touching pat ofthe genitals-of [JIH, a child younger thin seventeen (17) years ofage and notthe spouse ofthe defendant
by means ofdefendant9s hand;
intendonally or knowingly, with the intent to arouse or gratify the sexual desire ofany persons engage in Sexual COntact by
causing the hand of FT, a child younger than seventeen (17) years of age and not the spouse ofthe defendant, to touch
part ofthe genitals ofsaid defendant[.I
CoNCLUSION
We affirmthe trial court9sjudgment.
AIlizabeth Long-Miers/
ELIZABETHLANG-NIERS
JUSTICE
Do Not Publish
TEX. R. App. P. 47
140508F.UO5
28
In-a
Cou|rfof|=:ppea|g
FifdlD|f=¬r|c*ofTe=afiLa¬DaIlaf=
JUDGmENT
LENNIE P. EARBIN, Appellant OnAppeal fromthe 219th Judicial District
Court, Collin County, Texas
No. 05-14-00508-CR V. Trial Cout CauseNo. 219-80478-2012.
Opinion deliveredby Justice Lung-Miers,
THE STATEOF TEXAS, AppeIlee Justices Francisand lhThitehill participating.
Based onthe Court9s opinion ofthis date, thejudgment ofthe trial court is AFFIRI\RED.
Judgment enteredthis 12th day ofMay, 2015.
29