Daniel William Mohler v. State ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00024-CR
DANIEL WILLIAM MOHLER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
TRIAL COURT NO. 1345064D
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MEMORANDUM OPINION1
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Appellant Daniel William Mohler appeals two convictions for indecency
with a child. The jury assessed punishment at six years for each offense, and
the trial court sentenced Appellant accordingly and ordered the punishments to
run consecutively. Appellant brings four points. In his first point, he complains
about charge error; in his second, he complains about the sufficiency of the
1
See Tex. R. App. P. 47.4.
evidence to support one of his convictions; and in the third and fourth points, he
complains about the admission of testimony by the investigating officer. We
affirm.
The Indictment
The indictment contained five counts. The first count provided:
[T]hat [Appellant], hereinafter called the Defendant, in the County of
Tarrant and State aforesaid, on or about the 1st day of September
2011,
through the 14th day of August, 2013, did intentionally or knowingly,
during a period of time that is 30 days or more in duration, commit
two or more acts of sexual abuse, to wit: [1] aggravated sexual
assault of a child under 14 years of age by causing the sexual organ
of [Complainant] to contact the sexual organ of the defendant and/or
[2] by causing the penetration of the sexual organ of [Complainant]
by inserting his finger into her sexual organ and/or [3] by causing the
sexual organ of [Complainant] to contact the mouth of the defendant
and/or [4] indecency with a child by touching the genitals of
[Complainant] with the hand of the defendant and/or [5] by touching
the anus of [Complainant] with the hand of the defendant and at the
time of the commission of each of these acts of sexual abuse the
defendant was 17 years of age or older and [Complainant] was
younger than 14 years of age . . . .
In Count One, the State charged Appellant with the offense of continuous sexual
abuse of a young child. See Tex. Penal Code Ann. § 21.02(b) (West Supp.
2016). The five acts of sexual abuse specifically enumerated in the first count
are lesser-included offenses of the offense of continuous sexual abuse. See id.
§ 21.02(c) (West Supp. 2016); Soliz v. State, 353 S.W.3d 850, 854 (Tex. Crim.
App. 2011).
2
Four of those lesser-included offenses were charged in the remaining four
counts of the indictment. In Count Two, the State alleged that Appellant caused
the sexual organ of Complainant to contact the sexual organ of Appellant—the
offense of aggravated sexual assault of a child under fourteen years of age and
the first act of sexual abuse alleged in Count One. See Tex. Penal Code Ann.
§ 22.021(a)(1)(B)(iii) (West Supp. 2016). In Count Three, the State alleged that
Appellant caused the sexual organ of Complainant to contact his mouth—the
offense of aggravated sexual assault of a child under fourteen years of age and
the third act of sexual abuse alleged in Count One. See id. In Count Four, the
State alleged that Appellant intentionally, with the intent to arouse or gratify his
sexual desire, engaged in sexual contact by touching the genitals of
Complainant, a child younger than seventeen years of age—the offense of
indecency with a child by contact and the fourth act of sexual abuse alleged in
Count One. See id. § 21.11(a)(1), (c)(1) (West 2011). Finally, in Count Five, the
State alleged that Appellant intentionally, with the intent to arouse or gratify his
sexual desire, engaged in sexual contact by touching the anus of Complainant, a
child younger than seventeen years of age—the offense of indecency with a child
by contact and the fifth act of sexual abuse alleged in Count One.2 See id.
2
The State also alleged in the indictment a special issue that at the time
Appellant committed the offense or offenses, Complainant was a child younger
than six years of age. This special issue did not make it into the jury charge, and
because there are no complaints regarding the special issue, we will not address
it further.
3
Peculiarities of the Offense of Continuous Sexual Abuse
The statutory language for the offense of continuous sexual abuse reflects
that the Legislature intended to permit one conviction for continuous sexual
abuse based on the repeated acts of sexual abuse that occur over an extended
period of time, even if the jury lacked unanimity as to each of the particular
sexual acts or their time of occurrence, so long as the jury members agreed that
at least two acts occurred during a period that was thirty or more days in
duration. See id. § 21.02(b), (d), (f) (West Supp. 2016); Price v. State, 434
S.W.3d 601, 605–06 (Tex. Crim. App. 2014). The statutory language also
reflects that the Legislature intended to disallow dual convictions for the offense
of continuous sexual abuse and for the offenses enumerated as “acts of sexual
abuse” when based on conduct against the same child during the same period of
time. See Tex. Penal Code Ann. § 21.02(e) (West Supp. 2016); Price, 434
S.W.3d at 606. Accordingly, in the context of the indictment in this case, if the
jury convicted Appellant of Count One, the Legislature did not contemplate the
jury also convicting Appellant on any of the lesser-included offenses listed in
Counts Two through Five.
On the other hand, in the context of the indictment in this case, if the jury
found Appellant not guilty of Count One, because the lesser-included offenses
were listed in subsequent counts, the jury potentially could have found Appellant
guilty of one, two, three, or all four of the lesser-included offenses identified in
Counts Two through Five. See Tex. Code Crim. Proc. Ann. art. 21.24 (West
4
2009); Shavers v. State, 881 S.W.2d 67, 73–75 (Tex. App.—Dallas 1994, no
pet.).
State Abandons Counts Two through Five but Requests Independent
Verdicts on the Five Lesser-Included Offenses Identified as Acts of Sexual
Abuse in Count One
At the close of the evidence, the State abandoned Counts Two through
Five but asked for the lesser-included offenses identified in Count One. The
charge, as submitted, authorized the jury to convict Appellant of Count One or,
assuming the jury found Appellant not guilty of Count One, authorized the jury to
convict Appellant of one, two, three, four, or all five of the lesser-included
offenses found within Count One.3
The Jury Verdict
The jury found Appellant not guilty of Count One, not guilty of the first three
lesser-included offenses, and guilty of the last two lesser-included offenses. The
jury thereafter assessed Appellant’s punishment for each of the lesser-included
offenses at six years’ confinement. The trial judge ordered the sentences to run
consecutively.
3
Citing article 21.24 of the code of criminal procedure, the court in Shavers
held that when the defendant was convicted of two lesser-included offenses
under one count in one indictment, one of the lesser-included offenses had to be
vacated. Shavers, 881 S.W.2d at 74–75. We have previously held that violation
of the one-offense-per-indictment rule is fundamental error. Owens v. State, 851
S.W.2d 398, 401 (Tex. App.—Fort Worth 1993, no pet.). But courts will not raise
the issue sua sponte. Id.
5
Sufficiency of the Evidence
In point two, Appellant maintains that the evidence is insufficient to sustain
his conviction for indecency with a child by touching her anus with his hand
because Complainant denied the conduct during her trial testimony and because
the State’s evidence showed that she referred to her “butt” as her buttocks or her
anus. Because Appellant admitted touching Complainant’s anus in State’s
Exhibit 1, we disagree.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979). This standard gives full play to the
responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Id.; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136
S. Ct. 198 (2015).
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs v.
State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Thus, when performing an
evidentiary sufficiency review, we may not re-evaluate the weight and credibility
of the evidence and substitute our judgment for that of the factfinder. See
Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we
6
determine whether the necessary inferences are reasonable based upon the
cumulative force of the evidence when viewed in the light most favorable to the
verdict. Murray, 457 S.W.3d at 448. We must presume that the factfinder
resolved any conflicting inferences in favor of the verdict and defer to that
resolution. Id. at 448–49.
State’s Exhibit 1 is a recorded conversation between Complainant’s
mother (Appellant’s daughter) and Appellant. During the recording, Appellant
stated that he touched Complainant’s anus for the purported purpose of checking
for pinworms. Complainant’s mother corrected Appellant by explaining to him
that touching the anus was not the proper way to check for pinworms and by
further explaining to him that the proper way was to place tape over the anus.
The only question for the jury was, therefore, whether to believe Appellant’s
explanation. The verdict reflects that the jurors did not; instead, they believed
that he touched her with the intent to arouse or gratify his sexual desire. This
evidence, when viewed in the light most favorable to the verdict, was sufficient
for a rational trier of fact to find the essential elements of the crime beyond a
reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.
We overrule Appellant’s second point.
7
Double Jeopardy
In point one, Appellant argues that the trial court erred by charging the jury
on the two lesser-included offenses of indecency with a child by contact because
they were jeopardy barred by his acquittal on Count One.4 We disagree.
Appellant was never in danger of being convicted of both the greater and
lesser offenses. As structured, the charge instructed the jury to proceed to the
lesser-included offenses only if it found Appellant not guilty of Count One, that is,
not guilty of continuous sexual abuse. Because the charge is relatively complex,
we provide it in an endnote.i In compliance with the instructions, after finding
Appellant not guilty of Count One, the jury proceeded to render a verdict on each
of the five enumerated lesser-included offenses.
We disagree with Appellant that by finding him not guilty of Count One, the
jury found him not guilty of all the lesser-included offenses. To find Appellant
guilty of Count One, the jury had to find that “during a period of time that is 30
days or more in duration, [Appellant] commit[ed] two or more acts of sexual
abuse.” The jury found Appellant not guilty of Count One but guilty of the last two
4
Appellant does not argue that the two convictions for indecency with a
child by contact are merged or subsumed within each other; rather, he argues
the two were subsumed within Count One and he was effectively acquitted of
both when he was acquitted of Count One. The two convictions for indecency
with a child could be punished separately. See Aekins v. State, 447 S.W.3d 270,
278 (Tex. Crim. App. 2014) (“A person who commits more than one sexual act
against the same person may be convicted and punished for each separate and
discrete act, . . . . The defendant might touch a child’s breast; then he touches
her genitals. Two separate acts, two separate impulses, two separate crimes.”).
8
lesser-included acts of sexual abuse. Accordingly, because the jury found that
Appellant committed two of the enumerated acts of sexual abuse, the only basis
for the jury finding that Appellant was not guilty of Count One was because the
jury did not find that the two acts of sexual abuse occurred over a period of time
of thirty days or more.
Appellant contends that the charge had to specify that the lesser-included
offenses had to occur within a period of twenty-nine days or less, otherwise the
acquittal on Count One effectively acquitted him of all the lesser-included
offenses as well. We disagree. The charge precluded the jury from even going
to the lesser-included offenses if the jury found Appellant committed two or more
offenses over a period of thirty days or more. Because the jury found Appellant
guilty of two of the lesser-included offenses but did not convict Appellant of Count
One, the jury necessarily did not find that Appellant committed those two lesser-
included offenses over a period of thirty days or more. Only if the jury found that
the two lesser-included offenses occurred during a period of thirty days or more
could Appellant’s double jeopardy argument possibly have any merit, as that was
precisely the issue submitted to the jury in Count One. However, given the way
in which this charge was structured, the jury would never have reached the
lesser-included offenses if it had concluded that the two offenses occurred during
a period of thirty days or more.
We overrule Appellant’s first point.
9
Detective’s Belief in Complainant’s Outcry
In point three, Appellant asserts that the trial court erred in admitting
Detective Chad Woodside’s testimony indicating a belief in Complainant’s outcry.
At trial, there was evidence that Complainant made an outcry, thereafter
recanted her outcry to her mother, and during a second forensic interview,
denied making a recantation.
We review the admission of evidence under an abuse of discretion
standard. Garcia v. State, 237 S.W.3d 833, 836 (Tex. App.—Amarillo 2007, no
pet.). We uphold the trial court’s ruling if the admission was within the zone of
reasonable disagreement. Id.
Regarding Detective Woodside’s vouching for the veracity of
Complainant’s outcry, Appellant himself invited Detective Woodside to give his
expert opinion on whether Complainant’s recantation was true or not true.
Defense counsel and Detective Woodside engaged in the following exchange:
[DEFENSE COUNSEL:] [W]hen some child, little child recants their
testimony, in your experience, expertise as a—as a crime
investigator, if a little child recants, who is in the best position to
determine whether or not that child’s recantation is true or not, the
parent who’s lived with that child all their lives or some person who
doesn’t even know them?
A. I guess it depends on what was said in the recant.
Q. Okay.
A. I wouldn’t know.
10
Later, when defense counsel asked Detective Woodside to acknowledge that
when he took a child to the hospital and spoke to the child’s parents, he started
off with the assumption that the child was telling the truth, Detective Woodside
agreed that was his assumption. Detective Woodside stated, “If a victim says
they’re a victim, then I’m assuming they’re a victim.” Detective Woodside’s
assumptions when he initiated an investigation, however, are a far cry from
vouching for the veracity of Complainant’s outcry or the falsity of her recantation
at trial. To the extent Detective Woodside vouched for the veracity of
Complainant’s outcry, he did so only at the prompting of defense counsel.
Where a defendant, by his questioning, causes the complained-of testimony,
courts consider the error invited and not preserved. See Stranberg v. State, 989
S.W.2d 847, 848 (Tex. App.—Texarkana 1999, pet. ref’d).
When the State questioned Detective Woodside regarding the second
forensic interview, the following exchange occurred:
Q. [THE STATE] And in the second interview she didn’t recant, did
she?
A. Correct.
Q. Now, as a detective in these types of cases, have you seen
recantations before?
A. Yes.
Q. And are there true recantations?
[DEFENSE COUNSEL]: Which I will object, Your Honor, that’s
irrelevant.
THE COURT: Restate your question.
11
Q. ([THE STATE]) Based upon your experience, your training, your
knowledge, 30 years in the police department, have you seen
recantations in cases like this?
[DEFENSE COUNSEL]: I object to this, Judge. It’s irrelevant.
THE COURT: Overruled.
THE WITNESS: Yes.
Q. ([THE STATE]) And as a detective do you look at that and take
that seriously?
A. Yes.
Q. All right. Do you want to know the truth and get to the bottom of
what’s going on?
A. Yes.
Q. And is it important for you to look at the circumstances in any
given case?
A. Yes.
Q. As a detective in a case like this, would it be concerning to you
when you have a parent who might not fully be on board, might not
fully be believing?
A. It’s not necessarily concerning, but it’s common.
Q. Is it concerning to you when the perpetrator is a family member
and the family was once close-knit and this has destroyed the
family? Do you see that?
A. Yes, yes, always.
Earlier in the trial, the forensic interviewer had testified at length about
recantations and about how the forensic interviewer had tried, during a second
interview with Complainant, to probe the circumstances surrounding the
recantation so that the detective could make a decision about how to proceed.
12
Defense counsel himself later questioned Detective Woodside “in [his]
experience, expertise as a . . . crime investigator” about how he handled
recantations and about whether forensic interviewers continued to interview
children “until they [got] the kind of results they want[ed].” Because the jury
heard other evidence from both Detective Woodside and from the forensic
interviewer regarding how to view a recantation, we hold that the trial court did
not abuse its discretion by admitting Detective Woodside’s testimony. See Leday
v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (holding that the
“overruling of an objection to evidence will not result in reversal when other such
evidence was received without objection, either before or after the complained-of
ruling”).
Furthermore, in this instance, the only question Detective Woodside
answered—over proper objection followed by an adverse ruling—was whether he
had seen recantations in his career, and he answered “yes.” Detective
Woodside had answered the nearly identical question the same way without an
objection only moments before. Later, on cross-examination, defense counsel
asked Detective Woodside if he had had any experience with recantations, and
Detective Woodside answered that he had. A trial court does not reversibly err
by admitting evidence over objection where the same evidence is admitted
elsewhere during trial without objection. Gurrusqueita v. State, 244 S.W.3d 450,
455 (Tex. App.—Fort Worth 2007, pet. ref’d). Even assuming the trial court had
erred, any error was harmless. See Tex. R. App. P. 44.2(b).
13
We overrule Appellant’s third point.
Minimization and Corroboration Testimony
In point four, Appellant maintains that the trial court erred in admitting the
investigating officer’s opinion evidence that Appellant had minimized his crimes
and that some parts of the recording corroborated Complainant’s statement.
After the trial court admitted the recording between Appellant and Complainant’s
mother, Detective Woodside testified regarding the recording as follows:
Q. [THE STATE] Let’s talk about this recorded call that
[Complainant’s mother] did with [Appellant]. In your 30 years with
the police, have you had an opportunity to interview people accused
of crimes like this?
A. Yes.
Q. On few or many occasions?
A. Many.
Q. And when these people are confronted with accusations like this,
what do they typically do?
A. Typically, they will minimize their behaviors. They will make
excuses, place blame somewhere else.
...
Q. ([THE STATE]) Detective Woodside, when you listen to the
conversation, do you hear things that corroborate what
[Complainant] said happened?
[DEFENSE COUNSEL]: Your Honor, and the tape speaks for itself.
What he’s hearing is irrelevant.
THE COURT: Overruled.
[DEFENSE COUNSEL]: The tape is the best evidence, not his
opinion about what’s on the tape.
14
THE COURT: Overruled as to that objection.
THE WITNESS: Yes.
Q. ([THE STATE]) And could you just name a few things?
A. Well, first and foremost, she said that Papa Dan touched her girl
parts, and he confirmed that on the audio tape. She said that it
happened in bed, he said it happened in bed. She said she was
wearing a nightgown, he said she was wearing a nightgown. She
said that it happened when Grandma was gone, he said it happened
when Grandma was gone. So it corroborates and confirms what the
victim said in her statement.
Q. And do—what about minimizing, do you see examples of him
minimizing?
A. Yes. He said that—well, biggest thing is he says that she’s
exaggerating, says that she—
[DEFENSE COUNSEL]: Your Honor, can I have—can I have an
ongoing objection as to his interpretation of what’s being said on this
tape and speculating as to whether what’s in [the] minds of the
people who are talking on this tape?
She’s asked the question for him to analyze and speculate as
to what the people on this tape are saying, as to what that meaning
is, what they’re—what they mean when they’re saying what they’re
saying, asking him to analyze their thought processes. That’s pure
speculation and conjecture on the part of this witness.
THE COURT: Overruled. The question was, What about
minimizing, do you see examples of him minimizing? So you can
answer that question.
THE WITNESS: Like I said, he says she’s exaggerating. He says
that she has a big imagination. He says that he gives her [a] shower
because she wants to take a shower or she won’t bathe. Those are
all things to minimize his own behavior. He says that he didn’t say
anything because he was paranoid. Those are all things to minimize
his behavior.
15
Whether a defendant is guilty or not guilty is a conclusion the jury reaches
based upon the instructions given them in the charge coupled with the evidence
admitted at trial. See Williams v. State, 417 S.W.3d 162, 182 (Tex. App.—
Houston [1st Dist.] 2013, pet. ref’d). A witness may testify to those opinions that
are “(a) rationally based on the witness’s perception; and (b) helpful to clearly
understanding the witness’s testimony or to determining a fact in issue.” Tex. R.
Evid. 701; see Williams, 417 S.W.2d at 182. “An opinion is not objectionable just
because it embraces an ultimate issue.” Tex. R. Evid. 704. A police officer may
testify regarding his inspection of the evidence. See Williams, 417 S.W.3d at 182
(holding admissible officer’s testimony that the crime scene suggested
“something sexual” and that it did not appear to be a “normal sexual assault”); Ex
parte Nailor, 149 S.W.3d 125, 134–35 (Tex. Crim. App. 2004) (holding counsel
not ineffective for not objecting to officer’s opinion testimony that defendant had
not been attacked); Solomon v. State, 49 S.W.3d 356, 364 (Tex. Crim. App.
2001) (holding admissible witness’s testimony that defendant was responsible for
robbery).
Detective Woodside testified as to what he, as an investigator, heard when
listening to the audio recording. His testimony was rationally based upon his
perception, assisted by his experience and training, and was helpful to a clear
understanding of the determination of a fact at issue, that is, how to evaluate
Appellant’s explanations for conduct he admitted engaging in. See Tex. R. Evid.
16
701, 704. We hold that the trial court did not abuse its discretion. See Garcia,
237 S.W.3d at 836.
We overrule Appellant’s fourth point.
Conclusion
Having overruled Appellant’s points, we affirm the trial court’s judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: GARDNER, MEIER, and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 29, 2016
i
The charge provided for Count One and, separately, the five component lesser-
included offenses independently:
COUNT ONE
Now, if you find from the evidence beyond a reasonable doubt
that the defendant, [Appellant], in Tarrant County, Texas, on or
about the 1st day of September 2011 through the 14th day of August
2013, did intentionally or knowingly, during a period of time that is 30
days or more in duration, commit two or more acts of sexual abuse,
to wit: [1] aggravated sexual assault of a child under 14 years of
age by causing the sexual organ of [Complainant] to contact the
sexual organ of the defendant and/or [2] by causing the penetration
of the sexual organ of [Complainant] by inserting his finger into her
sexual organ and/or [3] by causing the sexual organ of
[Complainant] to contact the mouth of the defendant and/or [4]
indecency with a child by touching the genitals of [Complainant] with
the hand of the defendant and/or [5] by touching the anus of
17
[Complainant] with the hand of the defendant and at the time of the
commission of each of these acts of sexual abuse the defendant
was 17 years of age or older and [Complainant] was younger than
14 years of age, then you will find the defendant guilty of the offense
of continuous sexual abuse of a child as charged in Count One of
the indictment.
Unless you so find from the evidence beyond a reasonable
doubt, o[r] if you have a reasonable doubt thereof, you will acquit the
defendant and say by your verdict “Not Guilty” of the offense of
continuous sexual abuse of child as charged in Count One of the
indictment, and you will next consider whether the Defendant is
guilty of each of the lesser included offenses referred to below
separately and individually.
[1] If you find from the evidence beyond a reasonable doubt
that the defendant, [Appellant], in Tarrant County, Texas, on or
about the 1st day of September 2011 did then and there intentionally
or knowingly cause the sexual organ of [Complainant], a child
younger than 14 years of age, to contact the sexual organ of the
defendant; then you will find the defendant guilty of the lesser
included offense of aggravated sexual assault of a child.
Unless you so find from the evidence beyond a reasonable
doubt, or if you have a reasonable doubt thereof, you will acquit the
defendant and say by your verdict “Not Guilty” of the lesser included
offense of aggravated sexual assault of a child.
[2] If you find from the evidence beyond a reasonable doubt
that the defendant, [Appellant], in Tarrant County, Texas, on or
about the 1st day of September 2011 did then and there intentionally
or knowingly cause the penetration of the sexual organ of
[Complainant], a child younger than 14 years of age, by inserting his
finger into her sexual organ, then you will find the defendant guilty of
the lesser included offense of aggravated sexual assault of a child.
Unless you so find from the evidence beyond a reasonable
doubt, or if you have a reasonable doubt thereof, you will acquit the
defendant and say by your verdict “Not Guilty” of the lesser included
offense of aggravated sexual assault of a child.
[3] If you find from the evidence beyond a reasonable doubt
that the defendant, [Appellant], in Tarrant County, Texas, on or
about the 1st day of September 2011[] did then and there
intentionally or knowingly cause the sexual organ of [Complainant], a
child younger than 14 years of age, to contact the mouth of the
defendant, then you will find the defendant guilty of the lesser
included offense of aggravated sexual assault of a child.
18
Unless you so find from the evidence beyond a reasonable
doubt, or if you have a reasonable doubt thereof, you will acquit the
defendant and say by your verdict “Not Guilty” of the lesser included
offense of aggravated sexual assault of a child.
[4] If you find from the evidence beyond a reasonable doubt
that the defendant, [Appellant], in Tarrant County, Texas, on or
about the 1st day of September[] 2011[] did then and there
intentionally, with the intent to arouse or gratify the sexual desire of
said defendant, engage in sexual contact by touching the genitals of
[Complainant], a child younger than 17 years of age; you will find the
defendant guilty of the lesser included offense of indecency with a
child.
Unless you so find from the evidence beyond a reasonable
doubt, or if you have a reasonable doubt thereof, you will acquit the
defendant and say by your verdict “Not Guilty” of the lesser included
offense of indecency with a child.
[5] If you find from the evidence beyond a reasonable doubt
that the defendant, [Appellant], in Tarrant County, Texas on or about
the 1st day of September 2011[] did then and there intentionally,
with intent to arouse or gratify the sexual desire of said defendant,
engage in sexual contact by touching the anus of [Complainant], a
child younger than 17 years of age, then you will find the defendant
guilty of the lesser included offense of indecency with a child.
Unless you so find from the evidence beyond a reasonable
doubt, or if you have a reasonable doubt thereof, you will acquit the
defendant and say by your verdict “Not Guilty” of the lesser included
offense of indecency with a child.
The charge then provided six not guilty/guilty forms. The first one was for Count
One—the continuous sexual abuse of a child—which was joined by an “or” with
the remaining five lesser-included offenses. Thereafter, there was one for the
lesser-included offense of aggravated sexual assault of a child “and/or” for the
lesser-included offense of aggravated sexual assault of a child “and/or” for the
lesser-included offense of aggravated sexual assault of a child “and/or” for the
lesser-included offense of indecency with a child “and/or” the lesser-included
offense of indecency with a child. The jury found Appellant not guilty of “Count
One” and not guilty of the three lesser-included offenses of aggravated sexual
assault of a child, but it found Appellant guilty of the two lesser-included offenses
of indecency with a child. Because the verdict forms are hard to follow, we
provide them below.
19
VERDICT FORMS
COUNT ONE
We, the jury, find the defendant, [Appellant], not guilty of the
offense of continuous sexual abuse of a child as charged in Count
One of the indictment.
[/s/ Presiding Juror]
PRESIDING JUROR
OR
We, the jury, find the defendant, [Appellant], guilty of the
offense of continuous sexual abuse of a child as charged in Count
One of the indictment.
_______________
PRESIDING JUROR
OR
VERDICT FORMS (Continued)
[1] We, the jury, find the defendant, [Appellant], not guilty of
the lesser included offense of aggravated sexual assault of a child.
[/s/ Presiding Juror]
PRESIDING JUROR
OR
We, the jury, find the defendant, [Appellant], guilty of the
lesser included offense of aggravated sexual assault of a child.
_______________
PRESIDING JUROR
AND/OR
[2] We, the jury, find the defendant, [Appellant], not guilty of
the lesser included offense of aggravated sexual assault of a child.
20
[/s/ Presiding Juror]
PRESIDING JUROR
OR
We, the jury, find the defendant, [Appellant], guilty of the
lesser included offense of aggravated sexual assault of a child.
_______________
PRESIDING JUROR
AND/OR
VERDICT FORMS (Continued)
[3] We, the jury, find the defendant, [Appellant], not guilty of
the lesser included offense of aggravated sexual assault of a child.
[/s/ Presiding Juror]
PRESIDING JUROR
OR
We, the jury, find the defendant, [Appellant], guilty of the
lesser included offense of aggravated sexual assault of a child.
_______________
PRESIDING JUROR
AND/OR
[4] We, the jury, find the defendant, [Appellant], not guilty of
the lesser included offense of indecency with a child.
_______________
PRESIDING JUROR
OR
We, the jury, find the defendant, [Appellant], guilty of the
lesser included offense of indecency with a child.
[/s/ Presiding Juror]
PRESIDING JUROR
21
AND/OR
VERDICT FORMS (Continued)
[5] We, the jury, find the defendant, [Appellant], not guilty of
the lesser included offense of indecency with a child.
_______________
PRESIDING JUROR
OR
We, the jury, find the defendant, [Appellant], guilty of the
lesser included offense of indecency with a child.
[/s/ Presiding Juror]
PRESIDING JUROR
22