Robert Lafayette Lovell v. the State of Texas

Opinion filed August 3, 2023
In The
Eleventh Court of Appeals
__________
No. 11-22-00099-CR
__________
ROBERT LAFAYETTE LOVELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 90th District Court
Stephens County, Texas
Trial Court Cause No. F36096
MEMORANDUM OPINION
The jury convicted Appellant, Robert Lafayette Lovell, of the offense of
continuous sexual abuse of a child under fourteen years of age, a first-degree felony.
TEX. PENAL CODE ANN. § 21.02(b)(1), (b)(2)(A), (h) (West Supp. 2022). Appellant
elected for the trial court to assess his punishment. Based on Appellant’s pleas of
“true” to two enhancement allegations, the trial court found each enhancement to be
“true” and assessed Appellant’s punishment at life imprisonment in the Texas
Department of Criminal Justice, Institutional Division. See id. § 21.02(h). In two
issues, Appellant contends that (1) the trial court’s charge contained error that
resulted in egregious harm to Appellant, and (2) the trial court abused its discretion
when it admitted certain evidence over Appellant’s objection. We affirm.
I. Factual Background
The victim1 testified that Appellant frequently sexually abused her from
around the time she was nine years old until she outcried to her aunt and mother
when she was eleven. After the victim outcried, her mother contacted the police; the
victim was later examined by a sexual assault nurse examiner (SANE). After law
enforcement concluded its investigation, Appellant was arrested and subsequently
indicted for continuous sexual abuse of a child.
At trial, Appellant objected to a portion of the victim’s testimony—in which
she recounted a time when Appellant picked her up in his vehicle while he was
intoxicated and proceeded to crash the vehicle into a wall—on the basis that the
victim’s testimony about this incident was irrelevant and did not constitute same-
transaction contextual evidence. The trial court overruled Appellant’s objection.
II. Standards of Review
Appellate review of alleged charge error is a two-step process. Kirsch v. State,
357 S.W.3d 645, 649 (Tex. Crim. App. 2012) (citing Abdnor v. State, 871 S.W.2d
726, 731 (Tex. Crim. App. 1994)). First, we must determine whether charge error
exists. Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015) (citing Kirsch,
357 S.W.3d at 649). Second, if error does exist, we must then conduct a harm
analysis to determine whether the error resulted in sufficient harm to warrant
reversal. Id.; Phillips v. State, 463 S.W.3d 59, 64–65 (Tex. Crim. App. 2015); Ngo v.
1
To protect the identity of the minor victim in this case, we refer to her simply as “the victim.”
2
State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Ybarra v. State, 621 S.W.3d
371, 384 (Tex. App.—Eastland 2021, pet. ref’d).
Although “the jury is the exclusive judge of the facts,” it is “bound to receive
the law from the court and be governed thereby.” TEX. CODE CRIM. PROC. ANN.
art. 36.13 (West 2007). The purpose of the trial court’s charge is to “inform the jury
of the applicable law and guide them in its application to the case.” Delgado v. State,
235 S.W.3d 244, 249 (Tex. Crim. App. 2007) (quoting Hutch v. State, 922 S.W.2d
166, 170 (Tex. Crim. App. 1996)). Charge error stems from the denial of a
defendant’s right to have the trial court provide the jury with instructions that
correctly set forth the “law applicable to the case.” Bell v. State, 635 S.W.3d 641,
645 (Tex. Crim. App. 2021) (quoting CRIM. PROC. art. 36.14). Because the trial
court is obligated to correctly instruct the jury on the law applicable to the case, it is
ultimately responsible for the accuracy of its charge and the accompanying
instructions. Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018) (citing
Delgado, 235 S.W.3d at 249). Therefore, when the charge is inaccurate, the trial
court errs, and the error is subject to a harm analysis. See Bell, 635 S.W.3d at 645.
A trial court’s decision to admit or exclude evidence is reviewed for an abuse
of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019);
Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). This standard also
applies to a trial court’s decision to admit or exclude extraneous-offense evidence.
De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); Barron v. State,
630 S.W.3d 392, 410 (Tex. App.—Eastland 2021, pet. ref’d). We will not reverse a
trial court’s decision to admit or exclude evidence, and there is no abuse of
discretion, unless that decision lies outside the zone of reasonable disagreement.
Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018); De La Paz, 279
S.W.3d at 343–44; Barron, 630 S.W.3d at 410. Furthermore, we will uphold a trial
court’s evidentiary ruling, even if the trial court’s reasoning is flawed, if it is correct
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on any theory of law that finds support in the record and is applicable to the case.
Henley, 493 S.W.3d at 93; Dering v. State, 465 S.W.3d 668, 670 (Tex. App.—
Eastland 2015, no pet.).
III. Analysis
A. Charge Error
The portion of the trial court’s charge about which Appellant complains is
reproduced below:
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In the application portion of its charge, the trial court included a recitation of
the statutory definition of indecency with a child by contact which stated, among
other things, that the offense may be committed if the defendant touched the breast
of a child. Appellant complains that the inclusion of this language was error because
it served to confuse the jury with respect to the permissible manner and means for
how this offense could be a predicate offense of continuous sexual abuse of a child.
A person commits the offense of continuous sexual abuse of a child if, during
a period that is thirty or more days in duration, the person commits two or more acts
of sexual abuse and, at the time of the commission of each of the acts of sexual
abuse, the actor is seventeen years of age or older and the victim is a child younger
than fourteen years of age, regardless of whether the actor knows the age of the
victim at the time the offense is committed. See PENAL § 21.02(b).
For purposes of Section 21.01, the statutory definition of an “act of sexual
abuse” includes the offense of indecency with a child, “if the actor committed the
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offense in a manner other than by touching, including touching through the clothing,
the breast of a child.” Id. § 21.02(c)(2) (emphasis added); see id. § 21.11(a)(1) (West
2019). To convict a defendant of the offense of continuous sexual abuse of a child,
a jury is not required to agree unanimously on which specific acts of sexual abuse
were committed by the defendant. Id. § 21.02(d). Rather, the jury must only agree
that the defendant, during a period that is thirty or more days in duration, committed
two or more statutorily defined acts of sexual abuse. Id.
A person commits the offense of indecency with a child by contact if the
person engages in sexual contact with a child who is younger than seventeen. See
id. § 21.11(a)(1). Section 21.11 defines “sexual contact” as (1) “any touching by a
person, including touching through clothing, of the anus, breast, or any part of the
genitals of a child;” or (2) “any touching of any part of the body of a child, including
touching through clothing, with the anus, breast, or any part of the genitals of a
person.” See id. § 21.11(c).
Here, the trial court’s charge recited the statutory definition of the offense of
indecency with a child by contact—including that the offense may be committed by
touching the victim’s breast—in the application portion of the charge. Appellant
complains that this instruction is erroneous because its placement in the application
portion of the charge was likely to either confuse, influence, or mislead the jury
regarding the manner and means by which it may lawfully convict Appellant of the
charged offense. Because the complained-of definition is included in the application
portion of the charge, Appellant asserts that “we have no fair assurance that one or
more jurors did not conclude that if Appellant touched the victim’s breasts, he was
guilty of a predicate element of continuous sexual abuse of a child.”
The State appears to concede that the trial court’s charge contains error. We
note, however, that the trial court’s charge listed the manners and means by which
the jury may determine that Appellant committed indecency with a child as a
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predicate offense of continuous sexual abuse. The manners and means listed in the
charge are by (a) exposure of Appellant’s genitals to the victim, (b) Appellant’s
sexual contact with the victim by touching her genitals, or (c) Appellant’s sexual
contact with the victim by touching her anus. The charge does not list “touching of
the victim’s breast” as a permissible manner and means. For purposes of discussion,
we will assume, without deciding, that the inclusion of this instruction in the
application portion of the charge was error; therefore, we will conduct the
appropriate harm analysis. See Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim.
App. 2016); Ngo, 175 S.W.3d at 743.
Appellant acknowledges that he did not make a timely and proper objection
in the trial court to the charge error that he now complains about on appeal; therefore,
Appellant must show “egregious harm” to obtain a reversal. Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g); see Madden v. State, 242
S.W.3d 504, 513 (Tex. Crim. App. 2007). When the defendant or his trial counsel
fails to make a timely and proper objection to the trial court’s charge, we will reverse
only if the error was so egregious and created such harm that the defendant was
deprived of a fair and impartial trial. Villareal v. State, 453 S.W.3d 429, 433 (Tex.
Crim. App. 2015); Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009);
Almanza, 686 S.W.2d at 171.
“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.” Villareal, 453 S.W.3d at 433; Sanchez v. State, 209 S.W.3d 117, 121 (Tex.
Crim. App. 2006). “Egregious harm is a ‘high and difficult standard’ to meet, and
such a determination must be ‘borne out by the trial record.’” Villareal, 453 S.W.3d
at 433 (quoting Reeves, 420 S.W.3d at 816). In our egregious harm analysis, we
examine the relevant portions of the record which must show that Appellant suffered
actual harm, as opposed to theoretical harm, because of the error. See Marshall v.
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State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016). Neither party bears the burden
of showing harm or the lack thereof under this standard. Villareal, 453 S.W.3d at433 (citing Warner v. State, 245 S.W.3d 458, 464 (Tex. Crim. App. 2008)).
Egregious harm is only shown when the error “created such harm that [the appellant
was deprived of] ‘a fair and impartial trial.’” Almanza, 686 S.W.2d at 171.
To determine if the complained-of charge error egregiously harmed
Appellant, the Court of Criminal Appeals in Almanza identified four factors that we
should weigh and consider: (1) the charge as a whole; (2) the state of the evidence,
including the contested issues and the weight of the probative evidence; (3) the
arguments of counsel; and (4) all other relevant information in the record that may
inform our analysis. See Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App.
2011) (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996));
Almanza, 686 S.W.2d at 171. These factors guide our analysis.
1. The Charge as a Whole
The first Almanza factor requires that we review the trial court’s charge in its
entirety. In this case, although the statutory definition of indecency with a child by
contact is recited in the application portion of the charge—which included that the
offense may occur by the defendant touching the breast of a child—the trial court
also correctly instructed the jury on this issue, both in the application and abstract
portions of the charge.
In the abstract portion of the charge, the trial court instructed the jury that the
State had specifically accused Appellant of having committed seven predicate
offenses to the charged offense of continuous sexual abuse of a child. Two of the
listed predicate offenses in the charge were indecency with a child by contact. The
charge further explained that Appellant was accused of having committed these
offenses by engaging in sexual contact with the victim by touching the victim’s
genitals or anus, respectively.
8
In the application paragraph, the charge states that, to convict Appellant of
continuous sexual abuse of a child, the jury must conclude that he committed two or
more acts of sexual abuse, to wit, either indecency with a child or aggravated sexual
assault. As we have said, the charge designates the manners and means by which
the jury may determine whether Appellant committed indecency with a child as a
predicate offense of continuous sexual abuse. The manners and means designated
in the charge are by (a) exposure of Appellant’s genitals to the victim,
(b) Appellant’s sexual contact with the victim by touching her genitals, or
(c) Appellant’s sexual contact with the victim by touching her anus. The charge
does not designate touching the victim’s breast as a permissible manner and means.
After designating the permissible manners and means, the charge recites the
statutory language for the offenses of indecency with a child by exposure and by
contact, including contact by touching a child’s breast. This is the language about
which Appellant now complains.
The application portion of the charge clearly states three manners and means
by which the jury may determine if Appellant committed the requisite predicate
offense. It excludes touching of the breast by not listing it as a fourth permissible
manner and means. This exclusion is highlighted by the recitation of the offense’s
statutory language, which instructs the jury that it is not necessary to consider every
manner and means designated in the charge for the purposes of determining a
predicate offense of continuous sexual abuse of a child. Unless the record indicates
to the contrary, and in this case it does not, we presume that the jury followed the
trial court’s instructions. See Taylor v. State, 332 S.W.3d 483, 492 (Tex. Crim. App.
2011); Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005); Smith v. State,
631 S.W.3d 484, 500 (Tex. App.—Eastland 2021, no pet.).
9
Therefore, when the trial court’s charge is read as a whole and in proper
context, we conclude that the first Almanza factor does not weigh in favor of finding
that Appellant suffered egregious harm.
2. The State of the Evidence
The second Almanza factor focuses on the evidence presented at trial.
Appellant argues that the State presented substantial testimony that Appellant
touched the victim’s breast on multiple occasions and that this, paired with the
complained-of definition and its placement in the application paragraph, effectively
impaired the jury’s ability to distinguish between the evidence that the jury should
and should not consider.
The State responds that the record is rife with evidence of various acts of
sexual abuse committed by Appellant beyond his alleged touching of the victim’s
breast, and that this evidence is more than sufficient to support the jury’s verdict.
Indeed, the victim testified that Appellant sexually abused her “[p]robably every
other weekend” over the course of an approximately three-year period. She never
testified that Appellant’s sexual abuse consisted only of contact with her breast;
rather, she described that the instances of sexual abuse consisted of Appellant
contacting her breast and genitals with his hands and tongue, and forcing her to
contact his genitals with her mouth. The victim testified that “this always
happen[ed]” when she went to Appellant’s home, and she explicitly specified that
“this” meant sexual abuse in which Appellant contacted her genitals and breast with
his tongue, and forced her to contact his genitals with her mouth.
The victim also described some instances in which Appellant penetrated her
vagina and anus with his penis. The victim testified that Appellant had a visible
hernia that she could see when he was naked. The State also presented notes that
the victim had written to a friend at her school during fifth or sixth grade, which
described Appellant’s acts of sexual abuse. In these notes, the victim described that
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Appellant had sexually abused her for three years, including that “he” had forced her
to “suck his thing.”
We agree with the State that the record is replete with evidence of Appellant
having committed numerous acts of sexual abuse against the victim, beyond only
touching the victim’s breast. Further, nowhere in the record does the victim testify
that any of Appellant’s acts of sexual abuse were confined only to contact with her
breast. Notably, there is no evidence in the record before us that directly controverts
the victim’s version of events.
Appellant asserts that the erroneous inclusion of the “touching the breast”
language—and the location of the complained-of definition in the charge—must
have affected the jury’s evaluation of the evidence because the resolution of his guilt
or innocence turned on the victim’s outcries and trial testimony, which included
numerous references to Appellant having touched her breast. But the victim
unequivocally testified to a pattern of sexual abuse in which Appellant always went
above and beyond touching her breast every time he sexually abused her. The
evidence shows that Appellant committed many acts of sexual abuse against the
victim within the meaning of the continuous sexual abuse statute, as well as acts of
sexual misconduct that are not included within the statutory definition, such as
touching the victim’s breast, which were interwoven throughout his ongoing sexual
abuse of the victim.
Therefore, considering the entire record, we conclude that the second Almanza
factor does not weigh in favor of finding that Appellant suffered egregious harm.
3. The Arguments of Trial Counsel
The third Almanza factor pertains to the arguments of trial counsel. In
weighing this factor, we must determine whether any statements made by the State,
Appellant’s trial counsel, or the trial court exacerbated or ameliorated the
11
complained-of charge error. Arrington v. State, 451 S.W.3d 834, 844 (Tex. Crim.
App. 2015).
Appellant complains that, in its closing argument, the State argued that any
consideration by the jury of the lesser-included offense of indecency with a child
(for which the complained-of instruction was proper and correct), would be
“ridiculous” because an abundance of evidence had been presented to support a
finding that Appellant was guilty only of continuous sexual abuse of the victim.
Appellant contends that the State’s argument—a legitimate trial strategy—attempted
to persuade the jury not to consider the lesser-included offense that the trial court
submitted, and thus directed the jury’s consideration more exclusively to the charged
offense, which in turn exacerbated the harm that was caused by the erroneous
instruction.
As the State observes, Appellant concedes that the State did not argue that a
conviction of the charged offense could be based on indecency with a child by
contact by touching the victim’s breast. As with the preceding factor, there was
abundant evidence that Appellant always went above and beyond touching the
victim’s breast every time he sexually abused her. Further, the State argued that
because the evidence that supported a conviction for the charged offense was so
overwhelming, there was no need for the jury to consider a lesser-included offense
of indecency with a child.
Therefore, we conclude that this factor does not weigh in favor of finding that
Appellant suffered egregious harm.
4. Other Relevant Information in the Record
Finally, the fourth Almanza “catch-all” factor requires that we consider any
other relevant information in the record that would assist in our determination of
whether Appellant suffered egregious harm as a result of the complained-of charge
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error. Gelinas v. State, 398 S.W.3d 703, 707 (Tex. Crim. App. 2013); Almanza, 686
S.W.2d at 171.
We note at the outset that the indictment contains the very language that
Appellant challenges on appeal. However, and to his detriment, Appellant did not
object to the form or substance of the indictment prior to trial or claim that he lacked
notice of the charge filed against him. See Smith v. State, 340 S.W.3d 41, 52 (Tex.
App.—Houston [1st Dist.] 2011, no pet.).
Here, the record shows that the jury never inquired of or submitted any note
or other form of communication to the trial court regarding the alleged deficiencies
in the charge to which Appellant now complains. See Lopez v. State, 314 S.W.3d
70, 73 (Tex. App.—Waco 2010, no pet.); Shavers v. State, 985 S.W.2d 284, 292
(Tex. App.—Beaumont 1999, pet. ref’d). Therefore, it is unlikely that the jury was
influenced, confused, or misled by the trial court’s instructions that Appellant now
complains were erroneous. Further, Appellant does not point to, nor have we found,
other information in the record that would either assist in our analysis or support a
finding of egregious harm.
Because there is no other relevant information in the record before us that
shows or suggests confusion or that the jury’s verdict was influenced or affected by
the complained-of instructions, we conclude that the fourth Almanza factor does not
weigh in favor of finding that Appellant suffered egregious harm.
Based on this record, we conclude that, even in the event that the inclusion of
the complained-of definition in the application paragraph of the charge was error,
Appellant did not suffer egregious harm resulting from it. Accordingly, we overrule
Appellant’s first issue.
B. Admission of an Extraneous Crime or Bad Act
In his second issue, Appellant contends that the trial court abused its discretion
when it admitted, over Appellant’s objection, the victim’s testimony about an
13
alleged traffic incident in which she “accused” Appellant of driving while
intoxicated.
The victim testified that, on one occasion, Appellant picked her up in his
vehicle after he had been drinking, and, while she was a passenger, he crashed his
vehicle into a wall at the end of a street. Before the victim testified, and outside the
presence of the jury, Appellant objected to the State’s proffer, arguing that the
evidence was irrelevant and not admissible as same transaction contextual evidence.
The trial court overruled the objection.
Appellant argues on appeal that this evidence was (1) irrelevant, (2) not
admissible as same transaction contextual evidence, and (3) an inadmissible
extraneous offense. The State contends that the victim’s testimony was relevant
because it showed Appellant’s lack of care for the victim by subjecting her to
physical harm by driving while intoxicated, and that this provides at least a small
“nudge” toward a fact of consequence—Appellant’s intent in connection with the
offense. We agree that this “one-off” event provides a glimpse of Appellant’s lack
of regard for the victim and conclude that the challenged testimony is relevant.
Evidence is relevant if it has any tendency to make a fact of consequence to
the determination of the action more or less probable than it would be without the
evidence. TEX. R. EVID. 401. Relevant evidence is generally admissible; however,
such evidence is only admissible if its admission is not prohibited by other rules of
evidence. Id. R. 402; Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009).
Rule 404 generally provides that evidence of extraneous offenses or bad acts is not
admissible to prove a defendant’s character in order to demonstrate that the
defendant acted in conformity with such character on a particular occasion, although
there are exceptions. Id. R. 404(b). One such exception to the general rule is “same-
transaction contextual evidence.” Inthalangsy v. State, 634 S.W.3d 749, 756 (Tex.
Crim. App. 2021). Although the State offered the challenged evidence on this basis
14
in the trial court, it now concedes in its brief that the proffered evidence “probably
was not transactional.” We agree.
To be admissible, “same-transaction contextual evidence must be ‘necessary
to the jury’s understanding of the [charged] offense’ such that the charged offense
would make little sense without the same-transaction evidence.” Inthalangsy, 634
S.W.3d at 756 (citing Pondexter v. State, 942 S.W.2d 577, 584 (Tex. Crim. App.
1996)). Nothing about the victim’s testimony regarding this “one-off” drunk driving
incident “illuminate[d] the nature of the [charged offense].” Camacho v. State, 864
S.W.2d 524, 532 (Tex. Crim. App. 1993). In fact, the victim never testified that any
of Appellant’s acts of sexual abuse occurred in or involved a vehicle. However, the
State argues in its brief that this evidence was relevant because it tended to show
Appellant’s lack of care for the victim.
Appellant contends that, because evidence of extraneous offenses or bad acts
are not excepted under Rule 404, the challenged evidence is not admissible. 2 The
State counters that the challenged testimony was relevant and properly admitted
because it tended to show Appellant’s lack of care for the victim. See Gutierrez v.
State, 630 S.W.3d 270, 283 (Tex. App.—Eastland 2020, pet. ref’d) (Rule 404(b)
2
The State argues that, other than his same-transaction evidence argument, Appellant has not
preserved any other arguments regarding the admissibility of this evidence, including that it is inadmissible
extraneous-offense evidence, because he did not object on that basis in the trial court. See Sterling v. State,
800 S.W.2d 513, 521 (Tex. Crim. App. 1990) (“Generally, error must be presented at trial with a timely
and specific objection, and any objection at trial which differs from the complaint on appeal preserves
nothing for review.”) (citations omitted). We disagree.
Counsel for the State offered the evidence as “[M]atters that are of an extraneous nature, although
I would actually say that many of them are really transactional, part of the transaction and everything that
occurred.” Trial counsel for Appellant objected that the evidence was irrelevant, not transactional, and
constituted separate bad acts. Because same-transaction contextual evidence is a proper basis to admit
otherwise inadmissible extraneous crimes or bad acts, Appellant’s objection fairly encompassed his
argument on appeal that the evidence was inadmissible as an extraneous bad act. See TEX. R. EVID. 404(b);
Inthalangsy, 634 S.W.3d at 756 (discussing same-transaction contextual evidence and Rule 404(b)).
15
exceptions are “neither mutually exclusive nor collectively exhaustive . . . [and]
‘Rule 404(b) is a rule of inclusion rather than exclusion.’”). We agree with the State.
Here, the trial court did not conduct a Rule 403 balancing analysis because
Appellant did not object to the admission of this evidence on that basis nor did he
request that the trial court conduct a balancing analysis. Further, Appellant does not
raise a Rule 403 argument on appeal. Nonetheless, based on this record, we conclude
that, on balance, the challenged evidence—that Appellant crashed his vehicle into a
wall when the victim was a passenger while he was driving while intoxicated—is
relevant for the purpose for which it was offered and that its probative value is not
substantially outweighed by any claimed prejudicial effect. Therefore, the trial court
did not abuse its discretion when it admitted this evidence. See Gutierrez, 630
S.W.3d at 283.
Accordingly, we overrule Appellant’s second issue.
IV. This Court’s Ruling
We affirm the judgment of the trial court.
W. STACY TROTTER
JUSTICE
August 3, 2023
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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