Craig Merlin Wild v. the State of Texas ( 2022 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-22-00042-CR
CRAIG MERLIN WILD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 336th District Court
Fannin County, Texas
Trial Court No. 21205
Before Morriss, C.J., Stevens and van Cleef, JJ.
Memorandum Opinion by Justice Stevens
MEMORANDUM OPINION
A Fannin County jury found Craig Merlin Wild guilty of two counts of aggravated sexual
assault of Lisa, a child, and one count of indecency by contact with Lisa1 The trial court
sentenced Wild to life in prison for each of the aggravated sexual assault convictions, and it
sentenced him to twenty years in prison on the indecency conviction.
On appeal, Wild contends that the trial court erred by (1) admitting extraneous-offense
evidence over his Rule 403 objection and (2) improperly commenting on the evidence in the
court’s charge. Because we find (1) that the trial court did not abuse its discretion in admitting
the extraneous-offense evidence and (2) that the erroneous jury charge did not harm Wild, we
affirm the trial court’s judgments.
I. Background
Lisa was thirty-one years old at the time of trial.2 She testified that she grew up living
with her parents in Fannin County, Texas. In 2002 and 2003, when she was twelve years old, her
parents separated and divorced. After the divorce, she and her two siblings, Karen and Robert,
1
To protect the identity of victims who were minors at the time of the alleged offenses, we refer to them by
pseudonyms. See TEX. R. APP. P. 9.10(a)(3).
2
In 2007, a Fannin County jury found Wild guilty of two counts of aggravated sexual assault of a child and one
count of indecency with a child. Wild v. State, No. 06-06-00124-CR, 2007 WL 3119270, at *1 (Tex. App.—
Texarkana Oct. 26, 2007, pet. ref’d) (mem. op., not designation for publication). The trial court in 2007 sentenced
Wild to life in prison “for each of the [sexual] assault counts and twenty years’ confinement on the indecency count,
along with a $5,000.00 fine for each count.” Id. This Court affirmed Wild’s conviction and sentence. Id. at *4.
The Texas Court of Criminal Appeals granted Wild’s petition for a writ of habeas corpus and ordered a new trial.
Ex parte Wild, No. WR-89,510-01, 2021 WL 115570 (Tex. Crim. App. Jan. 13, 2021) (per curiam). The retrial was
held in March 2022.
2
lived with Wild every other week for a while and then, eventually, only stayed with him on
weekends. She testified that, during her visits to Wild’s house, he would sexually assault her.
Lisa testified that she was first assaulted in 1999 or 2000, when she was nine or ten years
old. She remembered that it happened in Wild’s bedroom when they were alone. Wild was
massaging her back, but “his hands had started to wander,” and he touched her vagina over her
clothes. From then on, the abuse occurred “[e]very day.” It usually happened in his bedroom,
with the door locked, when they were alone. “Different things would happen different days.”
Lisa testified that he pulled her pants down, “touch[ed] [her] vagina,” and put his finger inside
her vagina. Later, he licked her vagina and put his tongue inside of her. She described Wild
making her masturbate him until he ejaculated. She said there would be pornography playing on
the television during the abuse. Lisa also described similar abuse happening in the shower and
when they would go swimming at Bonham State Park.
At the time of the abuse, Lisa did not tell anyone. Wild bribed her with “[t]oys, sports,
haircuts.” Wild warned her that she would “deeply regret it” if she told anyone. He told her that
“he would cause physical harm and/or kill [her]” if she ever said anything about the abuse. Lisa
testified that Wild told her that, if she did not allow him to abuse her, he would also do it to her
brother or sister. Lisa believed him. Her siblings had “no idea” that she was “protecting them.”
The abuse continued until 2004, when Lisa made an outcry of abuse while on a skating
trip with a church youth group.3 She testified that, while talking with her friends complaining
At the time of Lisa’s outcry, she and her sister were living with their mother and visiting Wild on the weekends.
3
Her brother, Robert, was living with Wild.
3
about their parents, “[i]t slipped” out. Afterwards, she told her youth pastor and his wife, who
was her grandmother. The next day, Lisa and her grandmother told her mother. That triggered
an investigation by the Fannin County Sheriff’s Office and a subsequent forensic interview at the
Fannin County Children’s Center. The forensic interview scared her “to death” because she was
afraid of the possible consequences. Lisa said that she refused a sexual assault nurse
examination being done on her because she was “uncomfortable,” “ashamed,” and “very scared.”
Also, because there had been no penile penetration, she did not see the point of enduring the
examination. Lisa reiterated that Wild had only penetrated her with his finger and his tongue.
Lisa’s brother, Robert, testified over Wild’s Rule 403 objection. The trial court granted
Wild a running objection to Robert’s extraneous-offense testimony. Robert was twenty-four
years old at the time of trial. He testified that, when he was a child and his parents separated, he
lived primarily with Wild. When Lisa made her outcry of abuse against Wild, Robert did not
believe her. Wild told him that, if Robert allowed Wild to sexually abuse him, the abuse would
not happen to Lisa. However, Robert admitted that he remembered occasions when Wild would
take Lisa into his bedroom, lock the door, and they would be in there for hours.
Robert explained that Wild started sexually abusing him when he was seven or eight
years old. The first time the abuse happened, Robert and Wild were in Wild’s bedroom on the
bed, in their underwear, watching TV. Wild removed Robert’s underwear and started touching
his genitals. Wild eventually had Robert touch his penis and perform oral sex. Robert testified
that his penis would penetrate Wild’s mouth and Wild’s penis would penetrate Robert’s mouth.
4
The abuse occurred most often in Wild’s bedroom. It was “pretty much an everyday
occurrence,” and it increased in frequency after his parents separated. Wild would close and
lock the bedroom door and watch pornography during the abuse. Robert testified that the abuse
would also happen at times in Wild’s mechanic shop and in Wild’s truck.
Robert testified that Wild would buy him toys to keep him “silent.” When Robert
resisted Wild’s abuse, he would physically force Robert to participate in the abuse, and at times,
Wild would react to resistance by punching Robert in the stomach. Robert did not tell anyone
about the abuse because he was afraid for his life. Wild told him that they would “take this to
the grave,” which Robert took to mean that, if he told anyone, Wild would send him to the grave.
Robert testified that Wild would listen in on his phone calls when he spoke with friends and that
he did the same with Lisa and their mother.
On one occasion, Robert threatened to tell someone about the abuse. It happened when
Wild was driving Robert home from Denison Dam and they were arguing. In response, Wild
tried to drive the truck into the lake, but Robert grabbed the steering wheel.
Robert testified that the abuse stopped after Lisa’s outcry because he went to live with his
mother, as she had obtained full custody over him, Lisa, and their sister. He was eleven or
twelve years old at the time of Lisa’s outcry.
When he was nineteen years old, Robert and some friends were driving over Denison
Dam, and he had a flash back of Wild trying to drive them into the lake. Robert “freaked out”
and had a panic attack. His friends pulled the truck over, and he called Lisa and “told her
everything.” He told her, “I believe you. It happened to me too.” She was the first person that
5
Robert told about the abuse that he had suffered. He told her first because he “realized it actually
happened to her. Everything started clicking, making sense.”
Lisa and Robert were the only witnesses during the guilt/innocence phase of the trial.
After all parties rested and made their closing arguments, the jury found Wild guilty of two
counts of aggravated sexual assault of Lisa, a child, and one count of indecency with Lisa, a
child. After a proceeding on punishment, the trial court sentenced Wild to life in prison for each
of the sexual assault counts and twenty years’ confinement on the indecency count, along with a
$10,000.00 fine for each of the three counts.
II. Robert’s Testimony Was Admissible Under Rule 403
In his first point of error, Wild argues that the trial court erred by allowing Robert to
testify to extraneous abuse perpetrated by Wild over Wild’s Rule 403 objection. Wild contends
that the probative value of Robert’s testimony was substantially outweighed by the danger of
unfair prejudice.
“[A] trial court’s ruling on the admissibility of extraneous offenses is reviewed under an
abuse-of-discretion standard.” Bradshaw v. State, 466 S.W.3d 875, 878 (Tex. App.—Texarkana
2015, pet. ref’d) (quoting Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011)). “A trial
court does not abuse its discretion if the decision to admit evidence is within the ‘zone of
reasonable disagreement.’” Id. (quoting Marsh v. State, 343 S.W.3d 475, 478 (Tex. App.—
Texarkana 2011, pet. ref’d)). “If the trial court’s decision on the admission of evidence is
supported by the record, there is no abuse of discretion, and the trial court will not be reversed.”
Id. (quoting Marsh, 343 S.W.3d at 478). “In determining whether the trial court abused its
6
discretion, ‘[w]e may not substitute our own decision for that of the trial court.’” Id. (quoting
Marsh, 343 S.W.3d at 478).
By statute, when a defendant is tried for a sexual offense committed against a child under
seventeen years of age, the State may, notwithstanding Rules 404 and 405 of the Texas Rules of
Evidence, introduce evidence that the defendant has committed a separate sexual offense against
another child “for any bearing the evidence has on relevant matters, including the character of
the defendant and acts performed in conformity with the character of the defendant.” TEX. CODE
CRIM. PROC. ANN. art. 38.37, §§ 1–2 (Supp.). Thus, in cases like the one before us, Article 38.37
“permits the introduction of evidence ‘in a trial of a defendant for the enumerated sexual crimes
against children . . . that the defendant has committed certain offenses against a nonvictim of the
charged offense.’” Harty v. State, 552 S.W.3d 928, 933 (Tex. App.—Texarkana 2018, no pet.)
(quoting Belcher v. State, 474 S.W.3d 840, 844 (Tex. App.—Tyler 2015, no pet.)).
Even so, “the admission of evidence under Article 38.37 ‘is limited by Rule 403’s
balancing test, which permits admission of evidence as long as its probative value is not
substantially outweighed by its potential for unfair prejudice.’” Fahrni v. State, 473 S.W.3d 486,
492 (Tex. App.—Texarkana 2015, pet. ref’d) (quoting Bradshaw, 466 S.W.3d at 882). When
conducting a Rule 403 balancing test, the court
must balance (1) the inherent probative force of the proffered item of evidence
along with (2) the proponent’s need for that evidence against (3) any tendency of
the evidence to suggest decision on an improper basis, (4) any tendency of the
evidence to confuse or distract the jury from the main issues, (5) any tendency of
the evidence to be given undue weight by a jury that has not been equipped to
evaluate the probative force of the evidence, and (6) the likelihood that
7
presentation of the evidence will consume an inordinate amount of time or merely
repeat evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). In any given case,
“these factors may well blend together in practice.” Id. at 642.
With respect to the first factor in the balancing test, evidence of a separate sexual offense
against a child admitted under Article 38.37 is probative on the issues of intent and a defendant’s
character or propensity to commit sexual assaults on children. See Bradshaw, 466 S.W.3d at
883; TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b). Here, the evidence was particularly
probative of Wild’s propensity to sexually assault children who were members of his family.4
We conclude that this factor weighed strongly in favor of admission.
As to the second factor, Wild’s opening statement focused on the State’s dearth of
evidence, and his closing argument challenged the credibility of Lisa and Robert. By adopting
Article 38.37, Section 2, the Legislature recognized that, in child sex offenses, “there is typically
very little evidence to assist prosecutors with proving their cases.” Bradshaw, 466 S.W.3d at
884 (quoting Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 12, 83d Leg., R.S.
(2013)). Because there was no biological evidence, there was no third-party eyewitness to the
alleged incidents, and Wild challenged Lisa’s credibility, the State had a considerable need for
4
“Remoteness of an extraneous offense is properly considered in determining whether the probative value of the
evidence is substantially outweighed by the danger of unfair prejudice.” Harty, 552 S.W.3d at 935 (citing Newton v.
State, 301 S.W.3d 315, 320 (Tex. App.—Waco 2009, pet. ref’d) (concluding that the “remoteness of the extraneous-
offense evidence significantly lessens its probative value” but finding the twenty-five-year-old-extraneous-offense
evidence admissible)). However, we do not believe here that the “remoteness of the extraneous offenses rendered
the probative value of this evidence so weak as to render this evidence inadmissible under Rule 403.” Id. This is
because the Texas Rules of Evidence “favor the admission of all logically relevant evidence for the jury’s
consideration.” Montgomery v. State, 810 S.W.2d 372, 375 (Tex. Crim. App. 1990) (op. on reh’g).
8
the evidence. “Rule 403 ‘should be used sparingly to exclude relevant, otherwise admissible
evidence that might bear on the credibility of either the defendant or complainant in such ‘he
said, she said’ cases [involving sexual assault].’” Id. at 883–84 (alteration in original) (quoting
Hammer v. State, 296 S.W.3d 555, 562 (Tex. Crim. App. 2009)). Accordingly, the second factor
also weighs in favor of admission.
Regarding the third factor, this Court recognizes that the inherently inflammatory and
prejudicial nature of Wild’s extraneous offenses against Robert tends to suggest a verdict on an
improper basis. See Newton v. State, 301 S.W.3d 315, 320 (Tex. App.—Waco 2009, pet. ref’d).
Therefore, the third factor weighs against admission.
As to the fourth factor, the issue in this case was whether Wild had committed the acts of
sexual abuse against Lisa as alleged in the State’s indictment. The trial court mitigated the
tendency of the extraneous-offense evidence to confuse or distract the jury from the main issues
at trial by its charge. Specifically, the trial court identified for the jury the elements the State was
required to prove by its indictment and instructed the jury that it could consider the extraneous-
offense evidence only if it found Wild had committed the extraneous offenses beyond a
reasonable doubt, and then, if it made that finding, that it could only consider the evidence for its
bearing on matters relevant to determining whether Wild committed the acts alleged in the
indictment. Because the jury was redirected to the main issues in the case, we find that the
fourth factor weighs in favor of admission.
The fifth factor refers to evidence such as highly technical or scientific evidence that
might mislead the jury because the jury is not equipped to weigh the probative force of the
9
evidence. See Gigliobianco, 210 S.W.3d at 641. Here, the evidence in question was neither
scientific nor technical and pertained to matters, including victim credibility, that could easily be
understood by a jury. We find that the fifth factor weighs in favor of admission.
As to the sixth and final factor, Robert’s extraneous-offense testimony on direct
examination comprised approximately twenty-three pages of transcript in a multi-day trial.
Therefore, we find that the presentation of the extraneous-offense evidence did not consume an
inordinate amount of time. On this record, we conclude that the last factor favors admission.
We find that the trial court, after balancing the Rule 403 factors, could have reasonably
concluded that the probative value of Robert’s extraneous-offense evidence was not substantially
outweighed by the danger of unfair prejudice and the other factors in the rule. Consequently, we
find that the trial court did not abuse its discretion in admitting the evidence. As a result, we
overrule Wild’s first point of error.
III. The Charge Included an Erroneous Instruction, But the Error Was Harmless
The trial court’s charge in both counts of aggravated sexual assault included the
following definition:
Our law provides that a person commits the offense of Aggravated Sexual Assault
of a Child if . . . the person intentionally or knowingly causes the sexual organ of
a child to contact or penetrate the mouth of another person, including the actor
OR causes the penetration of the sexual organ of a child by any means.
Penetration is complete however slight.
(Emphasis added). In his second point of error, Wild contends that the trial court erred by
including the phrase “[p]enetration is complete however slight” because it was a comment on the
weight of the evidence.
10
“We employ a two-step process in our review of alleged jury-charge error.” Murrieta v.
State, 578 S.W.3d 552, 554 (Tex. App.—Texarkana 2019, no pet.) (citing Abdnor v. State, 871
S.W.2d 726, 731 (Tex. Crim. App. 1994)). “Initially, we determine whether error occurred and
then evaluate whether sufficient harm resulted from the error to require reversal.” Id. (quoting
Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor, 871
S.W.2d at 731–32)).
We first determine whether the court’s instruction was erroneous. “[T]he jury is the
exclusive judge of the facts, but it is bound to receive the law from the court and be governed
thereby.” Id. (quoting TEX. CODE CRIM. PROC. ANN. art. 36.13). The purpose of a jury charge is
to instruct the jury on the applicable law, and a charge must include an accurate statement of the
law. See TEX. CODE CRIM. PROC. ANN. art. 36.14. Moreover, the trial court must apply the law
to the facts adduced at trial. Gray v. State, 152 S.W.3d 125, 127 (Tex. Crim. App. 2004). A trial
court may not submit a charge that comments on the weight of the evidence. See TEX. CODE
CRIM. PROC. ANN. art. 36.14. “A trial court comments on the weight of the evidence if the
charge ‘assumes the truth of a controverted issue,’ Whaley v. State, 717 S.W.2d 26, 32 (Tex.
Crim. App. 1986), or ‘directs undue attention’ to particular evidence,” Giesberg v. State, 945
S.W.2d 120, 124 (Tex. App.—Houston [1st Dist.] 1996[, pet. ref’d]) . . . .” Lacaze v. State, 346
S.W.3d 113, 118 (Tex. App—Houston [14th Dist.] 2011, pet. ref’d). “In determining whether
the charge improperly comments on the weight of the evidence, we consider the court’s charge
as a whole and the evidence presented at trial.” Id.11
“As a general matter, definitions for terms that are not statutorily defined are not
considered to be the ‘applicable law’ under [Texas Code of Criminal Procedure] Article 36.14,
and it is thus generally impermissible for the trial court to define those terms in the jury
instructions.” Green v. Texas, 476 S.W.3d 440, 445 (Tex. Crim. App. 2015). The term
“penetration” is not defined by statute. In a prosecution for aggravated sexual assault of a child,
the term “penetration” is a “common term[] that [has] not acquired a technical meaning”; thus,
the term is “to be interpretated by the jury according to common usage.” Id. at 445. Therefore, a
trial court errs by including a definition of “penetration” in the charge because it constitutes a
comment on the weight of the evidence.5 Id. at 445–46.
In Green, the trial court erred by instructing the jury that penetration of a female sexual
organ was something that “occurs so long as contact with the female sexual organ could
reasonably be regarded by ordinary English speakers as more intrusive than contact with the
outer vaginal lips and is complete, however slight, if any.” Id. at 444. In Trevino v. State, this
Court held that that trial court erred by instructing the jury that penetration was “penetration of
any degree.”6 Trevino v. State, No. 06-15-00165-CR, 2016 WL 2997392, at *6 (Tex. App.—
Texarkana May 25, 2016, no pet.) (mem. op., not designated for publication) (citing Green, 476
S.W.3d at 446–47). Similarly, in Manrrique v. State, the trial court erred by instructing the jury
5
“Although an appellate court may articulate a definition of a statutorily undefined, common term in assessing the
sufficiency of the evidence . . . a trial court’s inclusion of that definition in a jury charge may constitute an improper
comment on the weight of the evidence.” Green, 476 S.W.3d at 446 (quoting Kirsch v. State, 357 S.W.3d 645, 652
(Tex. Crim. App. 2012)).
6
“Although unpublished opinions have no precedential value, we may take guidance from them ‘as an aid in
developing reasoning that may be employed.’” Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.—Texarkana
2017, pet. ref’d) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d)).
12
that as to the offense of aggravated sexual assault, “penetration is complete regardless of how
slight.” Manrrique v. State, No. 02-19-00458-CR, 2021 WL 4205011, at *3–4 (Tex. App.—Fort
Worth Sept. 16, 2021, no pet.) (mem. op., not designated for publication) (citing Green, 476
S.W.3d at 446–47); but see Turner v. State, 626 S.W.3d 88, 97–99 (Tex. App.—Dallas 2021, no
pet.) (citing Green, 476 S.W.3d at 444) (court of appeals held that “penetration is complete
however slight” was a proper instruction under Green). Here, the trial court’s instruction that
“[p]enetration is complete however slight” mirrors those in Green, Trevino, and Manrrique.
Thus, the instruction was error.
When we have found error in the trial court’s jury charge, we next “evaluate whether
sufficient harm resulted from the error to require reversal.” Wilson v. State, 391 S.W.3d 131,
138 (Tex. App.—Texarkana 2012, no pet.). Where, as here, the defendant objected to the
erroneous part of the charge, he must demonstrate only that he suffered some harm to obtain a
reversal. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). While this harm must be
“actual, rather than theoretical,” “the presence of any harm, regardless of degree, which results
from preserved charging error, is sufficient to require a reversal of the conviction.” Id. It is the
appellant’s burden to “persuade the reviewing court that he suffered some actual harm as a
consequence of the charging error. If he is unable to do so, the error will not result in a reversal
of his conviction.” LaPoint v. State, 750 S.W.2d 180, 191 (Tex. Crim. App. 1986) (op. on
reh’g). The effect of the error must be considered “in light of the entire jury charge, the state of
the evidence, including the contested issues and the weight of probative evidence, the arguments
of counsel and any other relevant information revealed by the record of the trial as a whole.”
13
Sanchez v. State, 376 S.W.3d 767, 774–75 (Tex. Crim. App. 2012) (quoting Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1985)).
Other than the improper instruction, the trial court’s charge was a correct rendering of
applicable law. The trial court’s erroneous instruction was brief. The instruction was “‘mild,
neutral,’ and describe[d] an obvious[,] common-sense proposition,’ and thus . . . would not have
impinged on the jury’s fact-finding authority.” Green, 476 S.W.3d at 447 (quoting Brown v.
State, 122 S.W.3d 794, 803 (Tex. Crim. App. 2003)).
Also, penetration was a central issue for the jury’s consideration. “[P]enetration of the
complainant’s sexual organ was a critical element of the offense.” Id. The State raised the issue
of penetration in its opening statement. Penetration was brought up multiple times during the
direct examination of Lisa and Robert. Thus, “the jury’s focus would have been on this element
of the offense regardless of the inclusion of the [instruction].” Id. As a result, the charge,
considered as a whole, weighs against a finding of harm.
The State made no reference to the challenged instruction in its closing argument.
Instead, the State focused its argument on the testimony of Lisa and her credibility. Likewise,
Wild’s closing argument did not address the instruction. Rather, Wild attacked the credibility of
Lisa and the State’s lack of any other witnesses or evidence. Based on the closing arguments, we
conclude that they weigh against a finding of harm.
Lisa and Robert were the only witnesses during the guilt/innocence phase of the trial.
Lisa gave clear testimony that Wild touched her vagina with his hand and that he penetrated her
vagina with his tongue and his finger. She testified that, when she was around Wild, the abuse
14
happened almost every day and that it went on for years. Lisa also testified that Wild would try
to purchase her silence with toys and favors and that he also threatened her with dire
consequences should she ever tell anyone about the abuse. Lisa only made an outcry after she
accidentally told her friends during a church skating trip. The case turned on the credibility of
Lisa, and the jury made the credibility determination regarding her testimony. Based on the
evidence, we find that this factor weighs against a showing of harm.
For these reasons, we find that Wild has not established that he suffered any harm
because of the erroneous jury charge. As a result, we overrule Wild’s second point of error.
IV. Conclusion
We affirm the trial court’s judgments.
Scott E. Stevens
Justice
Date Submitted: October 10, 2022
Date Decided: November 1, 2022
Do Not Publish
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