Cecil Ray Wafer, Jr. v. State ( 2012 )

IN THE
TENTH COURT OF APPEALS
No. 10-11-00237-CR
CECIL RAY WAFER, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 18th District Court
Johnson County, Texas
Trial Court No. F44879
MEMORANDUM OPINION
Cecil Ray Wafer, Jr., was convicted of three counts of indecency to a child: by
causing M.B. to touch Wafer’s genitals, by causing S.B. to touch Wafer’s genitals, and by
touching the genitals of S.B. See TEX. PENAL CODE ANN. § 21.11(a)(1), (c) (West 2011).
He was sentenced to 10 years on each count. Counts one and two were ordered to be
stacked while count four was ordered to run concurrently with count one. Because the
error in the jury charge did not cause Wafer egregious harm and because the evidence
was sufficient to support the conviction, the trial court’s judgment is affirmed.
JURY CHARGE ERROR
Wafer complains in his first issue that the trial court erred in the submission of
the application paragraph of the charge to the jury because it improperly set forth the
mens rea required for conviction in that it allowed the jury to convict him of three
counts of indecency with a child for "intentionally or knowingly" engaging in sexual
contact with M.B. and S.B., although the proper mens rea for the offense is the specific
intent "to arouse or gratify the sexual desire of any person." TEX. PEN. CODE ANN. §
21.11(c) (West 2011).
Standard of Review
It is undisputed that Wafer did not object to the charge on this basis. Because
there was no objection made to the charge by Wafer, we must first determine whether
the charge as submitted to the jury was erroneous and if so, we must then analyze this
complaint utilizing the standard of Almanza v. State. Allen v. State, 253 S.W.3d 260, 264
(Tex. Crim. App. 2008) (citing Olivas v. State, 202 S.W.3d 137, 143-44 (Tex. Crim. App.
2006), citing Almanza, 686 S.W.2d 157 (Tex. Crim. App. 1985)). Under Almanza,
unobjected-to jury charge error will not result in reversal of a conviction in the absence
of "egregious harm." Almanza, 686 S.W.2d at 171.
In examining the record for egregious harm, we consider the entire jury charge,
the state of the evidence, the final arguments of the parties, and any other relevant
information revealed by the record of the trial as a whole. Olivas, 202 S.W.3d at 144.
Wafer v. State Page 2
Jury charge error is egregiously harmful if it affects the very basis of the case, deprives
the defendant of a valuable right, or vitally affects a defensive theory. Stuhler v. State,
218 S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex.
Crim. App. 2006).
Analysis
The State, rightfully so, concedes error. See Bazanes v. State, 310 S.W.3d 32, 37
(Tex. App.—Fort Worth 2010, pet. ref'd); Jones v. State, 229 S.W.3d 489, 492 (Tex. App.—
Texarkana 2007, no pet.) (finding error when charge "stated that indecency with a child
is committed if the person intentionally or knowingly engages in sexual contact with a
child"); see also King v. State, No. 10-09-00395-CR, 2010 Tex. App. LEXIS 7282, *23-24
(Tex. App.—Waco, Sept. 1, 2010, pet. ref’d). Therefore, we will review the record to
determine whether this error could have caused egregious harm to Wafer, considering
the entire jury charge, the state of the evidence, the argument of counsel, and any other
relevant information revealed by the record of the trial as a whole. See Olivas, 202
S.W.3d at 144; Almanza, 686 S.W.2d at 171.
The Entire Jury Charge
The jury charge was otherwise unexceptional. The abstract portion accurately
stated the substantive law on the offense of indecency with a child—including the
specific intent to arouse or gratify—thus informing the jury of what the State had and
did not have to prove. Although the charge defined "intentionally" and "knowingly"
Wafer v. State Page 3
and included those terms in the application portion of the charge, it did not include
them in the abstract portion of the charge setting forth the substantive law of indecency
with a child. Moreover, the charge included the required specific intent to arouse or
gratify in the application portion, along with the erroneous "intentionally and
knowingly" language. The charge also correctly addressed extraneous offense evidence,
the indictment, statements of the court and of counsel, the presumption of innocence,
the credibility of witnesses and weight to be given their testimony, and the burden of
proof. Consequently, within the context of the entire jury charge, the erroneous
application paragraph appears less harmful. The jury charge as a whole lessens any
potential harm suffered by Wafer.
The State of the Evidence
Regarding the state of the evidence, the primary contested issue at trial was
whether Wafer committed the conduct with the intent to arouse or gratify his sexual
desire. As will be explained more fully in Wafer's sufficiency of the evidence issue, the
specific intent required for the offense of indecency with a child may be inferred from
Wafer’s conduct, his remarks, and all of the surrounding circumstances-specifically
including the children’s testimony. See McKenzie v. State, 617 S.W.2d 211, 216 (Tex.
Crim. App. [Panel Op.] 1981). The jury, as the sole judge of the credibility of the
witnesses and the weight to be given their testimony, could have inferred that Wafer
Wafer v. State Page 4
had the intent to arouse or gratify his sexual desire from his own statements and from
the testimony of the children about the incidents. See id.
Arguments of Counsel
Although both parties mentioned the phrase “intentionally and knowingly,”
briefly by the State in going over the charge and briefly by Wafer in arguing the State’s
failure of proof, neither party dwelled on the subject. Instead, both parties focused on
the appropriate mens rea, whether Wafer committed the conduct with the intent to
gratify Wafer’s sexual desires. We find nothing in the closing arguments by either the
State or Wafer that indicates that Wafer was harmed by the error.
Other Information in the Trial as a Whole
After a review of the record, we note that each count in the indictment tracks the
same objectionable language as the charge; however, Wafer did not challenge the
indictment. Any potential error in the indictment was therefore, waived. See TEX. CODE
CRIM. PROC. ANN. art. 1.14(b) (West 2005); King v. State, No. 10-09-00395-CR, 2010 Tex.
App. LEXIS 7282, 24 (Tex. App.—Waco, Sept. 1, 2010, pet. ref’d). There was no use of
the phrase "intentionally and knowingly" during voir dire during the description of the
offense by either the State or Wafer. The State did not refer to the phrase at all during
its opening statement. Wafer did not include that reference in his opening statement
but cited the statute correctly. We do not find that the trial as a whole more than
minimally increased any potential harm to Wafer.
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Conclusion
Under the stringent standards necessary to show egregious harm, we conclude
that this error did not affect the very basis of Wafer’s sentences; thus, egregious harm
has not been shown. Wafer’s first issue is overruled.
SUFFICIENCY OF THE EVIDENCE
In his second issue, Wafer contends the evidence is insufficient to support his
convictions for all three counts of indecency with a child. The elements of indecency
with a child are that the accused (1) engaged in "sexual contact," (2) with a child, (3)
younger than seventeen years of age, (4) whether the child is of the same or opposite
sex. See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011). "Sexual contact" 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. Id. § 21.11(c). Specifically, Wafer argues the evidence was
insufficient to prove that he acted with the intent to arouse or gratify his sexual desire.
See id.
Standard of Review
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
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In determining whether the evidence is legally sufficient to support
a conviction, a reviewing court must consider all of the evidence in the
light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to
support the conviction." Hooper, 214 S.W.3d at 13.
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).
The Court of Criminal Appeals has also explained that our review of "all of the
evidence" includes evidence that was properly and improperly admitted. Conner v.
State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,
326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence
are treated equally: "Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is
well established that the factfinder is entitled to judge the credibility of witnesses and
can choose to believe all, some, or none of the testimony presented by the parties.
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
Wafer v. State Page 7
Further, the sufficiency of the evidence should be measured by the elements of
the offense as defined by the hypothetically correct jury charge for the case. Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would be one that
accurately sets out the law, is authorized by the indictment, does not unnecessarily
increase the State's burden of proof or unnecessarily restrict the State's theories of
liability, and adequately describes the particular offense for which the defendant was
tried. Id. This standard can uniformly be applied to all trials, whether to the bench or
to the jury, whether or not the indictment is facially complete, and regardless of the
specific wording of the jury charge actually given. Id.
The specific intent required for the offense of indecency with a child may be
inferred from the defendant's conduct, his remarks, and all of the surrounding
circumstances-specifically including the victim’s testimony. See McKenzie v. State, 617
S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981); Bazanes v. State, 310 S.W.3d 32, 37
(Tex. App.—Fort Worth 2010, pet. ref’d).
Facts
Wafer lived with his girlfriend, Frances, and her three granddaughters. In late
June of 2010, two of the granddaughters, M.B. and S.B., were playing basketball with
Wafer. At least three times, M.B. pulled down Wafer’s shorts which exposed Wafer’s
penis. Wafer was not wearing any underwear. In a written confession, Wafer stated
that on two separate dates, the girls pulled his shorts down 10-12 times, exposing his
Wafer v. State Page 8
penis. He was not wearing any underwear at those times either. According to M.B. and
S.B., after playing basketball, they went swimming with Wafer. Wafer took off his
swim suit and instructed the girls to take off either their bikini bottoms or panties. They
then played a game of “truth or dare” and Wafer instructed the girls to touch his penis.
They complied. Wafer admitted that the girls touched his naked penis. He also
admitted that he touched M.B.’s vagina, but on the outside of her clothing. S.B. stated
that Wafer touched her vagina and M.B.’s vagina in the pool while they did not have on
any shorts or panties. M.B. denied that Wafer ever touched her vagina.
Two days after the incident in the pool, S.B. told a family friend, Latrisha, about
it. They then approached Frances and M.B. When Latrisha asked M.B. about what
happens when they play “truth or dare,” M.B. began crying and said that Wafer had
made her touch his penis. Frances confronted Wafer and told him to take his things and
leave her house. Latrisha also stated that she had previously noted some inappropriate
behavior by Wafer toward S.B. such as grabbing S.B.’s bottom and her breast.
Wafer’s daughter, ex-wife, and pastor testified about Wafer’s good character and
that he participated in children’s ministries for 15 years. Wafer’s daughter stated that
M.B. and S.B. did not behave well when she was around them. His ex-wife testified that
she thought the girls would try to do something if Wafer ever disciplined them.
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Application
Wafer admitted that the girls touched his penis and that he touched M.B.’s
vagina. He allowed the girls to pull down his shorts repeatedly when he had on no
underwear. After reviewing all the evidence in the light most favorable to the verdict,
and taking into account the inferences from Wafer's conduct, his remarks, and all of the
surrounding circumstances, we find the evidence was sufficient to prove that Wafer
acted with the intent to arouse or gratify his sexual desire as to all three counts of
indecency with a child beyond a reasonable doubt. Wafer’s second issue is overruled.
CONCLUSION
Having overruled each issue on appeal, we affirm the trial court’s judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed June 20, 2012
Do not publish
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