Christopher Lee Castro v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00882-CR
Christopher Lee Castro, Appellant
v.
The State of Texas, Appellee
FROM THE 453RD DISTRICT COURT OF HAYS COUNTY
NO. CR-18-0381-C, THE HONORABLE DAVID JUNKIN, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Christopher Lee Castro of seven counts of indecency
with a child by sexual contact and two counts of sexual assault of a child and sentenced him to
twenty years’ confinement on each count. The trial court, on the State’s motion, ordered that the
sentences for the seven counts of indecency with a child were to run concurrently with one
another. The court also ordered that the sentences for the two counts of sexual assault of a child
were to run concurrently, but consecutively to those for indecency with a child. In seven issues,
Castro alleges that the trial court, in its charge to the jury, improperly commented on the weight
of the evidence. Castro also asks that the Court correct a typographical error in the judgment for
count II. We will modify the judgment to correct the error and affirm the trial court’s judgments
of conviction as modified.
DISCUSSION1
Jury-Charge Error
Castro, in seven issues, challenges the trial court’s inclusion of language in the
jury charge identifying each count of indecency with a child by the relevant testimony of the
complainant, M.C.2 Castro contends that the language amounts to an improper comment by the
trial court on the weight of the evidence, in violation of Article 36.14 of the Texas Code of
Criminal Procedure.
“The purpose of the jury charge is to inform the jury of the applicable law and
guide them in its application to the case.” Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App.
1996). We review alleged jury-charge error in two steps: first, we determine whether error
exists; if so, we evaluate whether sufficient harm resulted from the error to require reversal.
Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017); Ngo v. State, 175 S.W.3d 738,
743–44 (Tex. Crim. App. 2005). The degree of harm required for reversal depends on whether
the jury-charge error was preserved in the trial court. Marshall v. State, 479 S.W.3d 840, 843
(Tex. Crim. App. 2016); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op.
on reh’g) (setting forth procedure for appellate review of claim of jury-charge error). If the jury-
charge error has not been properly preserved by an objection or request for instruction, see Tex.
Code Crim. Proc. arts. 36.14, .15, as it was not here, reversal is required only upon a showing of
1
Because the parties are familiar with the facts of the case, its procedural history, and
the evidence adduced at trial, we do not recite them in this opinion except as necessary to advise
the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.1, .4.
2
For example, the first sentence of count I provides, “This count refers to the testimony
by M.C. regarding breast touching in the small house.”
Because the complainant is a minor, we will refer to her by her initials in the interest of
privacy. See id. 9.10(a)(3).
2
“egregious harm,” “which occurs when the error created such harm that the appellant was
deprived of a fair and impartial trial,” Chambers v. State, 580 S.W.3d 149, 154 (Tex. Crim. App.
2019). Appellant must have suffered actual, and not merely theoretical, harm. Id.Article 36.14, in relevant part, forbids the trial judge from delivering to the jury a
written charge “expressing any opinion as to the weight of the evidence, summing up the
testimony, discussing the facts or using any argument in his charge calculated to arouse the
sympathy or excite the passions of the jury.” Tex. Code Crim. Proc. art. 36.14. The primary
reason for the Article is to prevent instructions that reduce the State’s burden of proving guilt
beyond a reasonable doubt to the jury’s satisfaction. Brown v. State, 122 S.W.3d 794, 798 (Tex.
Crim. App. 2003) (citing 43 Dix & Dawson, Texas Practice Series: Criminal Practice and
Procedure § 36.36 (2d ed. 2001)).
It is axiomatic that a trial judge may not single out certain testimony and comment
on it. Russell v. State, 749 S.W.2d 77, 78 (Tex. Crim. App. 1988). Nor may the judge, through
the charge, suggest that certain evidence is true or untrue or instruct the jury on the weight to be
given certain testimony. Id.; see Brown, 122 S.W.3d at 801 (noting that instruction could violate
Article 36.14 “less obviously” by singling out evidence and “inviting the jury to pay particular
attention to it”). Similarly, a charge that assumes the truth of a controverted issue is erroneous.
Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App. 1986). Judges should, “as a general rule,”
avoid including non-statutory instructions in their charges because “such instructions frequently
constitute impermissible comments on the weight of the evidence.” Beltran De La Torre v.
State, 583 S.W.3d 613, 617 (Tex. Crim. App. 2019).
However, there are “circumstances in which the judge must call the jury’s
attention to certain evidence in order to accomplish other, equally important objectives of the
3
law.” Atkinson v. State, 923 S.W.2d 21, 24 (Tex. Crim. App. 1996), abrogated on other grounds
by Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002). The Texas Court of Criminal
Appeals (“CCA”) has recognized three circumstances under which “a trial court may single out a
particular item of evidence in the jury instruction without signaling to the jury an impermissible
view of the weight (or lack thereof) of that evidence”:
(1) the trial court may specifically instruct the jury when the law directs it to
attach “a certain degree of weight,” or only a particular or limited significance, to
a specific category or item of evidence; (2) the Legislature has expressly required
the trial court to call particular attention to specific evidence in the jury charge
when the law specifically identifies it as a predicate fact from which a jury may
presume the existence of an ultimate or elemental fact; or (3) the trial court may
instruct the jury with respect to evidence that is admissible contingent upon
certain predicate facts that it is up to the jury to decide.
See Bartlett v. State, 270 S.W.3d 147, 151 (Tex. Crim. App. 2008). An instruction that singles
out a particular piece of evidence, but does not serve one of these purposes, “risks impinging
upon the independence of the jury in its role as trier of the facts, a role long regarded by Texans
as essential to the preservation of their liberties.” Id. at 151–52. Even a “seemingly neutral
instruction” that singles out a particular piece of evidence for “special attention” may constitute
an impermissible comment on the weight of the evidence. Id. at 152; see Kirsch v. State,
357 S.W.3d 645, 652 (Tex. Crim. App. 2012) (“An instruction, albeit facially neutral and legally
accurate, may nevertheless constitute an improper comment on the weight of the evidence.”).
“In determining whether an instruction is a comment on the weight of the evidence, we must
consider the court’s charge as a whole.” Delapaz v. State, 228 S.W.3d 183, 212 (Tex. App.—
Dallas 2007, pet. ref’d).
4
Invited Error
The State asserts that to the extent the inclusion of the challenged language was
error, Castro is estopped from bringing the issue on appeal under the doctrine of invited error.
See Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (“The doctrine of invited error
is properly thought of, not as a species of waiver, but as estoppel.”). “The law of invited error
provides that a party cannot take advantage of an error that it invited or caused.” Woodall v.
State, 336 S.W.3d 634, 644 (Tex. Crim. App. 2011); see Willeford v. State, 72 S.W.3d 820, 823
(Tex. App.—Fort Worth 2002, pet. ref’d) (“The court of criminal appeals has applied invited
error when the defendant ‘invites’ the trial court to do something, the trial court does the act, and
thereafter the defendant complains of the trial court’s action.”).
Specifically, the CCA has held that a defendant “may not complain of a charge
that he requested.” Trejo v. State, 280 S.W.3d 258, 260 (Tex. Crim. App. 2009) (citing Tucker v.
State, 771 S.W.2d 523, 534 (Tex. Crim. App. 1988)); see Vega v. State, 394 S.W.3d 514, 520
n.21 (Tex. Crim. App. 2013) (“[T]he State cannot point to any part of the record showing that the
instruction given was requested and neither can we. Under these circumstances, we will not
assume appellant got the ‘exact jury instruction [that] he had requested’ and is now trying to
‘benefit from an error that was committed at his behest.’”); Trejo, 280 S.W.3d at 260 (“[T]he
mere absence of a showing of responsibility for the inclusion of the charge on the lesser offense
does not give rise to estoppel . . . . The record does not show that the appellant requested the
lesser-included-offense charge.”).
A mere failure to object, however, does not invite error. Bluitt v. State, 137
S.W.3d 51, 53 (Tex. Crim. App. 2004) (defendant’s statement of “no objection” to erroneous
jury charge “shall be deemed equivalent to a failure to object” and defendant “may raise such
5
unobjected-to [jury] charge error on appeal, but may not obtain a reversal for such error unless it
resulted in egregious harm”); Tyson v. State, 172 S.W.3d 172, 177 & n.2 (Tex. App.—Fort
Worth 2005, pet. ref’d) (stating that party did not invite error to jury charge by stating, “[W]e
believe it’s charged properly”). But see Woodard v. State, 322 S.W.3d 648, 659 (Tex. Crim.
App. 2010) (holding appellant had invited error where he “had some responsibility for the
jury instruction” and “helped prepare the charge, including the [challenged] instruction,” which
is “a great deal more than just simply not objecting to the charge or just stating ‘no objection’
to the charge”).
Here, Castro exercised his right to require the State to elect which acts it was
relying upon for each count. At trial, the following colloquy occurred outside the presence of
the jury:
THE STATE: [T]his is what I have been talking about the whole week in regard
to election. This is why we indict cases this way because we can’t prove a certain
date. That’s why the jury charge has those dates. What we can do, they can force
us to elect . . . . These are things that, yes, they can elect and we can say those
things. We have to put them in the jury charge, you have to find this incident or
this incident. And we have to, of course, word that where it’s not, you know, this
is what the Judge thinks. Of course, we will say, this refers to this incident.
...
Now that’s strategic, whether he wants us to elect these, then we are bound by
only these and we can come back later potentially if there was [sic] other charges,
or if he doesn’t want us to elect, then that means we are jeopardy-barred
completely from ever trying anything in this time frame again but that was a
strategic decision on our part.
THE DEFENSE: Your Honor, again, I’m not arguing about the dates. I’m
arguing about what came from [M.C.’s] mouth. What came from [M.C.’s] mouth
was at most five [counts]. Everything else is the State trying to supplement what
she said.
...
6
THE COURT: With respect to the rest of [the counts], as you walked down the
list a moment ago and if we need to do that again, we can. My memory is there
was testimony on all of those, to some [ex]tent.
THE DEFENSE: Very well, your Honor.
THE STATE: So just to be clear, are we asking for an election then to separate
these counts? Is that what they are asking us to do[?]
THE COURT: If that is an election the defense needs to make, then I do think you
need to make it. As I read the charge, again, those are identical but I suspect you
are going to say, to say this is what happened on one – but, it’s not in the
instructions, right? So, it’s –
THE STATE: Well, the issue I have with that, Judge, it wouldn’t be unless they
elect.
...
THE STATE: If they choose to elect, that would be in the jury charge as to which
specific portions of testimony we are referring to with each count, should they
make an election.
THE COURT: That’s the defense election to make.
THE DEFENSE: I so make that election.
Castro’s exercise of his right to compel the State’s election was not invited error.
After the State rests its case-in-chief, “the trial court must . . . order the State to make its
election” “in the face of a timely request by the defendant.” O’Neal v. State, 746 S.W.2d 769,
772 (Tex. Crim. App. 1988). We have previously explained that “[b]ecause it was created to
afford defendants adequate notice and an opportunity to defend, the election requirement triggers
fundamental constitutional due process principles.” Gutierrez v. State, 8 S.W.3d 739, 747
(Tex. App.—Austin 1999, no pet.), abrogation on other grounds recognized by Palmer v. State,
No. PD-1746-04, 2006 WL 2846864, *1 (Tex. Crim. App. Oct. 4, 2006); see Phillips v. State,
130 S.W.3d 343, 351 (Tex. App.—Houston [14th Dist.] 2004), aff’d, 193 S.W.3d 904 (Tex.
7
Crim. App. 2006) (“[T]he Austin Court of Appeals, in Gutierrez v. State, held that the right to
require the State to elect is constitutional in nature.”). In consideration of the important
constitutional protections and safeguards at stake, when a defendant exercises his right to
election and the trial court subsequently errs in the language used in its charge to the jury, the
defendant has not invited the error and is not estopped from challenging the erroneous instruction
on appeal. Likewise, Castro’s failure to object to the charge is insufficient to estop him from
raising the present issues. See Bluitt, 137 S.W.3d at 53.
Comment on the Weight of the Evidence
Castro contends that the trial court erred by including in the charge election
language relating each count to the relevant portion of M.C.’s testimony. He maintains that such
language was an improper comment on the weight of the evidence in violation of Article 36.14.
In support of his contention, Castro notes that election language does not fall into one of the
exceptions set forth in Bartlett, 270 S.W.3d at 151. In addition, he emphasizes the Court of
Criminal Appeals’ conclusion that even a facially neutral instruction attempting to provide
clarity for the jury may constitute an impermissible comment on the weight of the evidence by
singling out a piece of evidence that the jury “may then focus on as guidance from the judge.”
Rocha v. State, 16 S.W.3d 1, 20 (Tex. Crim. App. 2000). The State counters that the inclusion of
referent language in the charge is necessitated by the act of election itself, to ensure jury
unanimity. The State also stresses that the charge does not include an opinion as to the reliability
or credibility of M.C.’s testimony.
Although election language does not fall within the categories enumerated in
Bartlett, it is consistent with the Court of Criminal Appeals’ objectives in demarcating the
8
exceptions. While the Court of Criminal Appeals has interpreted Article 36.14 to forbid
discussion of evidence by the trial judge “which might suggest to the jury the judge’s personal
estimation of the strength or credibility of such evidence or which might tend to emphasize such
evidence by repetition or recapitulation,” it has nevertheless accepted that there will be situations
where such a risk is unavoidable, namely, where a desire to preserve the State’s burden from
undue influence must be balanced against an “equally important objective[] of the law.”
Atkinson, 923 S.W.2d at 24.
Ensuring jury unanimity is one such objective. The Texas Constitution requires a
unanimous verdict in felony criminal cases. Tex. Const. art. V, § 13; Tex. Code Crim. Proc.
art. 36.29(a). Unanimity in this context means “each and every juror agrees that the defendant
committed the same, single, specific criminal act.” Ngo, 175 S.W.3d at 745. A unanimous jury
verdict “ensures that the jury agrees on the factual elements underlying an offense,” requiring
“more than mere agreement on a violation of a statute.” Francis v. State, 36 S.W.3d 121, 125
(Tex. Crim. App. 2000). “A non-unanimous verdict can occur when the State charges one
offense and presents evidence that the defendant committed that offense on multiple separate
occasions.” De la Cruz Torres v. State, 570 S.W.3d 874, 880 (Tex. App.—Houston [1st Dist.]
2018, pet. ref’d). Thus, one of the purposes of requiring an election is “to ensure unanimous
verdicts, that is, all of the jurors agreeing that one specific incident, which constituted the offense
charged in the indictment, occurred[.]” Phillips, 130 S.W.3d at 349.
Our sister courts have come to differing conclusions in conducting the balancing
test advanced in Atkinson, and the Court of Criminal Appeals has yet to decide the matter. See
Gonzales v. State, No. 05-18-00895-CR, 2019 WL 3059878, at *5 (Tex. App.—Dallas July 12,
2019, pet. ref’d) (mem. op., not designated for publication) (holding omission of “if any”
9
modifier in election instruction did not constitute error where remainder of charge explained
State’s burden of proof and did not suggest offense had “necessarily occurred”); Newsome v.
State, No. 11-09-00222-CR, 2012 WL 4458176, at *4 (Tex. App.—Eastland Sept. 27, 2012, no
pet.) (mem. op., not designated for publication) (“We do not suggest, however, that the trial court
must include evidentiary references in the application paragraphs in the charge in order to
instruct the jury that it must reach a unanimous verdict as to the specific act.”); Ortiz v. State,
No. 11-10-00303-CR, 2012 WL 760804, at *2 (Tex. App.—Eastland Mar. 8, 2012, pet. ref’d)
(mem. op., not designated for publication) (holding instruction using modifiers “alleged,”
“allegedly,” and “if any” was not comment on weight of evidence because it did not suggest
State’s version of events “must be true,” and, in absence of instruction, jury could have non-
unanimously convicted defendant); Anderson v. State, No. 10-09-00306-CR, 2010 WL 4140317,
at *1 (Tex. App.—Waco Oct. 20, 2010, pet. ref’d) (mem. op., not designated for publication)
(holding charge did not “assume the truth of a controverted issue” where it used modifiers
“alleged,” “allegedly,” and “if any”); Bonner v. State, No. 10-09-00120-CR, 2010 WL 3503858,
at *10 n.6 (Tex. App.—Waco Sept. 8, 2010, pet. ref’d) (mem. op., not designated for
publication) (“In other paragraphs, however, the language used was qualified by referring to
occurrences a particular witness had ‘testified’ about.”).
Both Castro and the State cite Vickery v. State in support of their contentions.
Nos. 02-04-00422—00423-CR, 2005 WL 2244730, at *6 (Tex. App.—Fort Worth 2005, pet.
ref’d) (mem. op., not designated for publication). In Vickery, the Second Court of Appeals held
that the following election language was not a comment on the weight of the evidence:
The State has elected to proceed on the conduct described by [J.D.T.] as the first
time the defendant is alleged to have touched the genitals of [J.D.T.] by grabbing
10
them with his hand occurring while [J.D.T.] resided at the residence on Jet Street
and was 8 or 9 years of age.3
Id. at *2. The court explained that “[t]he first part of the sentence indicates that the State has
chosen a particular line of conduct that it will rely upon for conviction. The second part of the
sentence describes the conduct the State has chosen to proceed upon.”
Here, the State stresses the Vickery court’s reasoning that the first part of the
instruction in that case “inevitably leads one” to conclude that the complainant testified about
conduct that may or may not have occurred between the defendant and himself and that the
jury’s decision whether to believe the testimony “does not negate the fact that he did indeed
testify about some conduct.” Id. at *6. Castro in turn points to the court’s emphasis on the
instruction’s use of the word “alleged” as a modifier of the conduct. See id. How much
importance the court placed on each part of its analysis is unclear.
With respect to the charge in Castro’s case, the application portion for each count
of indecency with a child began with the qualifying formula: “This count refers to the testimony
of M.C. regarding” or “in regards to.” We conclude that the trial court’s formulation was error.
By explicitly and repeatedly referring to the testimony of the complainant—the sole witness
to testify about the facts underlying the charges—the court influenced the State’s burden and
engaged in the very conduct proscribed by Article 36.14. However, although we find that the
inclusion of the election language constitutes error, we conclude that Castro was not egregiously
harmed by its presence.
3
The court also considered an instruction in a second cause number identical in structure
to the language quoted above.
11
As discussed above, if we find that error exists, we must analyze the error for
harm. Arteaga, 521 S.W.3d at 333. Because Castro did not properly preserve his complaint
by objecting at trial, a reversal will be granted only if the error caused “egregious harm.” See
Chambers, 580 S.W.3d at 154. 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.
Arteaga, 521 S.W.3d at 338; Marshall, 479 S.W.3d at 843; Arrington v. State, 451 S.W.3d 834,
840 (Tex. Crim. App. 2015). “Egregious harm is a ‘high and difficult standard’ to meet, and such
a determination must be ‘borne out by the trial record.’” Villarreal v. State, 453 S.W.3d 429,
433 (Tex. Crim. App. 2015) (quoting Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App.
2013)); see Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013) (“[Egregious harm] is a
difficult standard to meet and requires a showing that the defendants were deprived of a fair and
impartial trial.”). We will not reverse a conviction unless the defendant has suffered “actual
rather than theoretical harm.” Villarreal, 453 S.W.3d at 433; see Marshall, 479 S.W.3d at 843(“[C]ourts are required to examine the relevant portions of the entire record to determine whether
appellant suffered actual harm, as opposed to theoretical harm, as a result of the error.”); Cosio v.
State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011) (“An egregious harm determination must be
based on a finding of actual rather than theoretical harm.”).
In examining the record to determine whether jury-charge error has resulted in
egregious harm, we consider: (1) the entirety of the jury charge; (2) the state of the evidence,
including the contested issues and weight of probative evidence; (3) the arguments of counsel; and
(4) any other relevant information revealed by the trial record as a whole. Arteaga, 521 S.W.3d
at 338; Marshall, 479 S.W.3d at 843; Villarreal, 453 S.W.3d at 433; Almanza, 686 S.W.2d
12at 171. The analysis is “fact specific and is done on a ‘case-by-case basis.’” Arrington,
451 S.W.3d at 840 (quoting Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013)).
Entirety of the Jury Charge
The remainder of the charge in the present case supports a conclusion that the
challenged language was not an improper comment on the weight of the evidence. The charge
instructed the jury at length about the State’s burden of proof: “no person may be convicted of an
offense unless each element of the offense is proved beyond a reasonable doubt”; “[u]nless the
jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial
consideration of all the evidence in the case, the presumption of innocence alone is sufficient to
acquit the defendant”; “[t]he State must prove every element of the offense beyond a reasonable
doubt to establish guilt for each offense”; “[t]he state must prove, beyond a reasonable doubt,
the accusations of Sexual Assault of a Child and Indecency with a Child.” The charge also
instructed jurors that evidence consists of “the testimony and exhibits admitted in the trial” and
that they “must consider only the evidence to reach [their] decision.” Moreover, it expressly
clarified that “[n]othing the judge has said or done” should be considered by jurors “as an
opinion about the facts of this case or influence [them] to vote one way or the other.” The jurors
were instructed that they alone “review the evidence,” “determine the facts and what they
prove,” and “judge the believability of the witnesses and what weight to give their testimony.”
Consequently, the first factor weighs against a finding that Castro was egregiously harmed.
State of the Evidence
The second factor requires us to review the state of the evidence, including the
contested issues and weight of probative evidence. Villarreal, 453 S.W.3d at 433. Under this
13
factor, “we look to the state of the evidence to determine whether the evidence made it more or
less likely that the jury charge caused appellant actual harm.” Arrington, 451 S.W.3d at 841.
M.C.’s testimony was the primary evidence against Castro at trial. She testified at length and in
detail about her family history, relationship with Castro, and a number of inappropriate sexual
contacts that occurred between the two.
The remainder of the State’s witnesses largely bolstered or corroborated portions
of M.C.’s testimony. M.C.’s mother, Ana Maria Dimas, testified that since coming to live with
her, M.C. had been lethargic, antisocial, and unwilling to leave the house. Dimas also testified
that when she and M.C. called Castro after M.C.’s initial outcry, Castro told her, “[T]hat’s not
the way it happened and [she] was just listening to [M.C.’s] side of the story.”
Vanessa Paulini, a former forensic interviewer, testified about the frequency of
delayed outcries. Although she clarified that she does not determine whether a child’s allegations
are true, she testified that abuse had only been made up in two of her 1,840 interviews.
Sgt. Mike Andrews with the Hays County Sheriff’s Office testified about his
interview of Castro. Andrews testified that he considered “elements” in Castro’s denial of the
allegations to be “red flags.” According to Andrews, instead of unqualifiedly repudiating the
allegations, Castro equivocated, responding, “I can’t remember any of those times happening”;
“I’m going to say, no”; “[f]rom the questions I was asked, no.” Andrews also thought it
was “odd” that, though the interview concerned M.C.’s allegations, “all [Castro] wanted to
really talk about was getting [M.C.’s younger sister] back.” On cross-examination, Andrews
acknowledged that his investigation had been limited to interviewing Castro and watching
M.C.’s forensic interview.
14
Finally, Ashley Rios, Program Director at Roxanne’s House, testified as an expert
about delayed outcries, the psychological effects of abuse, and false allegations. Rios testified
that delayed outcries are “very common” and that the closer the relationship between the
offender and victim, the longer the disclosure takes. With respect to false allegations, Rios
explained that “the majority of the time research shows that children do not make false
allegations of child sexual abuse. That percentage of false allegations is very small.”
Given the centrality of M.C.’s testimony to the State’s evidence and the emphasis
both sides placed on her credibility, the second factor weighs in favor of a finding that Castro
was egregiously harmed. M.C.’s reliability as a witness was the predominant issue at trial;
in view of the evidence, a charge that singled out the portions of her testimony alleging
inappropriate sexual acts was more likely to harm Castro.
Arguments of Counsel
Under the third Almanza factor, we consider whether any statements made during
the trial by the prosecutor, defense counsel, or trial court may have exacerbated or ameliorated
the error in the jury charge. Id. at 844. Both sides concentrated on the nature and significance
of testimonial evidence during opening arguments. The State, explaining that “testimony is
evidence” and that it did not expect to have physical evidence in the case, cautioned jurors, “It’s
going to be up to you to keep an open mind and think about, is this enough? Do we believe the
people that are coming in and testifying?” “The only person that saw what happened between
[M.C.] and Christopher,” the State continued, “[are] [M.C.] and Christopher. So, that’s an issue
in this case. There [are] no other witnesses to this conduct, just [M.C.]” The defense likewise
15
stated that the case was about “[w]ords, the impact of those words, and the absence of words.
Because in the end, that is all you are going to hear.”
In its closing argument, the State once more emphasized the significance of
M.C.’s testimony, expressly referencing the election language in the charge:
This jury charge you have are the words you need in the case. That’s the law.
That’s all you get. So, if you want another explanation on something, we can’t
give that. This is the law . . . . You heard [M.C.] She can’t tell you on Saturday,
September 5, this happened but she can talk about specific instances.
The State then reviewed the seven counts of indecency with a child, noting that
for each one, “the very first sentence tells you what the count is related to.” And later, the State
again went through “each and every count and what part of [M.C.’s] testimony is applicable.”
The prosecutor added, “[W]ords do have meaning. They are powerful. They are evidence.
They are testimony.” Moreover, the State explicitly tied a potential verdict of “not guilty” to
M.C.’s credibility as a witness, stating, “If you acquit, you are saying you do not believe her.
That’s the message. That is what you are saying, that what she said is not true and that it did not
happen.” However, the State also reminded the jury of its burden of proof in considering the
testimony: “[T]hat one-witness rule, if you believe her and all those elements are proven, then
guess what? That’s it. That’s it. If you believe her beyond a reasonable doubt, you convict.”
At closing, defense counsel expounded on the defense’s central themes of an
inadequate investigation and the insufficiency of testimony alone. Counsel summarized his
understanding of the State’s argument: “Let me tell you what their narrative was and is and
remains. [M.C.] made a statement. We believe it. It’s true. You have heard nothing else. Are
those facts I would argue, no, those are not facts.” Counsel insisted he was not accusing M.C. of
lying but merely illustrating that the State had not met its burden:
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[T]he standard now is you make the allegation. You are guilty. Do you want that
as a standard? I don’t have to call [M.C.] a liar because I don’t think it’s relevant.
What’s relevant is did they prove it? Did they prove that my client did something?
Did they do anything extra to find out if it was, true? No, every person along that
line on law enforcement side said guilty, let’s roll.
Counsel also challenged the number of incidents about which M.C. had testified:
The State may not be bound by dates but they are bound by what came out of the
witnesses’ mouth and I’ll let you think about the testimony the way you think
about it, but when I took my notes, I didn’t hear [M.C.] testify about no [sic]
nine different counts. I didn’t hear that. But you took your notes and what you
remember is what you remember.
The trial court, however, mitigated both sides’ arguments with respect to M.C.’s
testimony, its credibility, and its relation to the charge. When defense counsel objected to the
State’s characterization of a statement made by Castro, the trial court overruled the objection,
reminding jurors to “remember the evidence.” The court further admonished the jury, “Ladies
and gentlemen, remember nothing that the lawyers say is evidence. You are the sole judges of
any evidence that was given. You will remember what was or was not said.”
Despite their emphasis on M.C.’s testimony during opening and closing
arguments, both sides reminded the jury of its role as the trier of fact and judge of credibility, as
well as of the State’s burden of proof. Similarly, both framed the election language with respect
to its relation to M.C.’s testimony, distinguishing it from the statements of law contained in the
charge. Most significantly, the trial court during closing argument explicitly admonished the
jury that the arguments of counsel were not evidence, that they were the “judges of any
evidence,” and that it was their responsibility to recall the evidence as they could. Accordingly,
the third factor weighs at most slightly in favor of a finding that Castro was egregiously harmed.
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Other Relevant Information
The fourth factor involves any other relevant information in the record. The
statements made by both sides during voir dire weigh against a finding that Castro was
egregiously harmed. Prosecutors spoke at length about the State’s burden of proof and the jury’s
role as the trier of fact. The State advised the panel that “a juror’s duty if you’re in this box, is to
determine facts, determine the credibility of the witnesses, make reasonable deductions and
conclusions from the evidence.” The State elaborated:
That’s kind of the linchpin, you have to believe [witnesses] beyond a reasonable
doubt. Okay. So, like I have mentioned before, you just brought this up, jurors
are the judges of the witnesses’ credibility. It’s completely up to you to decide as
a jury to decide what you believe and how much of the testimony you believe of
these witnesses.
The State also offered a nuanced explanation of the role of testimony, stating that
“[w]hatever portion of it you believe as a juror, whatever amount you find credible, that is
considered evidence.” The defense similarly added, “I want 12 people that are going to listen to
the evidence without a preconceived notion of [Castro] and listen to that evidence and, when it’s
time for you to vote on it, if you believe a certain way, believe that way.” The fourth factor
weighs against a finding that Castro was egregiously harmed by the election language.
From our analysis of the Almanza factors, we conclude that Castro was not
egregiously harmed by the trial court’s inclusion of the election language in its jury charge. We
therefore overrule issues one through seven.
Modification of the Judgment
We have the authority to modify a trial court’s judgments and affirm them
as modified. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim.
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App. 1993) (courts of appeals have authority to modify judgment). In his eighth issue, Castro
correctly notes that the judgment form for count II erroneously provides “N/A” under “Findings
on 1st Enhancement Paragraph.” The verdict form for count II shows that the jury found the
allegation of a prior conviction to have been proven “true.” Accordingly, we sustain Castro’s
eighth issue and modify the judgment for count II to reflect that the jury made a finding of “true”
on the first enhancement paragraph.
CONCLUSION
Having overruled Castro’s issues one through seven and sustained issue eight, we
affirm the judgments of the trial court as modified.
__________________________________________
Melissa Goodwin, Justice
Before Justices Goodwin, Triana, and Smith
Dissenting Opinion by Justice Triana
Modified and, as Modified, Affirmed
Filed: December 30, 2021
Do Not Publish
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