John William Chambers, III v. State

11th Court of Appeals Eastland, Texas Opinion John William Chambers, III Appellant Vs. No. 11-01-00374-CR B Appeal from Dallas County State of Texas Appellee The grand jury indicted appellant for the offense of aggravated sexual assault of a child. The jury convicted appellant of the lesser offense of indecency with a child and assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 11 years. We affirm. Issues Raised on Appeal Appellant raises six points of error on appeal. The second point of error attacks the inclusion of the offense of indecency with a child in the jury charge as a lesser included offense. Appellant challenges the factual sufficiency of the evidence in his first point of error. The third, fourth, and fifth points of error address other complaints regarding the jury charge. Appellant asserts in his sixth point of error that the trial court erred in admitting during the punishment phase of the trial a videotape depicting appellant engaging in sexual conduct with an unidentified female. Background Facts The victim, J.M., was 12 years old at the time the offense occurred. The offense occurred in the home of a relative, Cheryl Payne. J.M. traveled to Payne=s apartment in order to spend the night with Payne=s child, W.W. Appellant was Payne=s boyfriend at the time. He was also present at Payne=s apartment along with Payne, W.W., and J.M. At some point in the evening, W.W., J.M., and appellant engaged in a pillow fight. J.M. testified that appellant pinched her breast during the pillow fight. At the time that it occurred, J.M. was not sure if the pinch of her breast was intentional or accidental. J.M., W.W., and appellant began watching a movie after the pillow fight ended. J.M. fell asleep watching the movie. She testified that she was awakened Aby someone feeling above my panties and just massaging myBmy crotch area.@ J.M. opened her eyes to see if W.W. was the person touching her. J.M. determined that W.W. had left the room. She then testified that the hand which was touching her Awent into my panties and started massaging, going down lower in my crotch area. And it was under my panties by this time. And when he got to one part, he stuck his finger in.@ Upon turning her head, J.M. saw a person with hairy legs wearing khaki shorts near her. When J.M. began making sounds and gestures to indicate that she was waking up, the other person got off of the couch and went outside of the apartment. J.M. then observed that Payne and W.W. were still inside the apartment sleeping in their respective bedrooms. J.M. told Payne that she had stomach cramps. Payne testified that J.M. appeared to be scared at that time. J.M. denied to Payne that anyone had Amessed@ with her. J.M. called her mother and asked her to come get her. As J.M. and her mother began driving away from the apartment, J.M. told her mother that appellant had Atried to finger her.@ J.M.=s mother then returned to the apartment to speak with Payne about the incident. When confronted by Payne, appellant denied that the incident occurred. He told Payne that J.M. was jealous and that J.M. had tried to initiate contact with him by pinching him during the pillow fight. Payne subsequently told appellant to leave her apartment. J.M.=s mother transported her to the Carrollton Police Department. Detective Dan Long took statements regarding the incident from J.M. and her mother. J.M. was then transported to Children=s Medical Hospital of Dallas for a child abuse examination. The findings of the physician who examined J.M. neither substantiated nor ruled out the abuse reported by J.M. Lesser Included Offense Appellant asserts in his second point of error that the trial court erred in granting the State=s request to include in the jury charge the offense of indecency with a child. The indictment charged appellant with the first degree felony offense of aggravated sexual assault by alleging that he intentionally and knowingly caused the penetration of J.M.=s female sexual organ with his finger. See TEX. PENAL CODE ANN. ' 22.021(a)(1)(B)(i) & (a)(2)(B) (Vernon Supp. 2004). At the close of evidence in the guilt/innocence phase, the State requested that the second degree offense of indecency with a child be included in the jury charge as a lesser included offense. See TEX. PENAL CODE ANN. ' 21.11(a)(1) (Vernon 2003). The State premised its request for the lesser charge on J.M.=s outcry statement to her mother wherein she stated that appellant had Atried to finger her.@ The trial court granted this request. The defendant usually is the party requesting a charge on a lesser offense in an effort to limit his criminal liability. However, the State is equally entitled to seek such a charge when it feels the proof has fallen short of proving the charged offense. See Arevalo v. State, 943 S.W.2d 887, 890 (Tex.Cr.App.1997). We apply a two‑step analysis to determine whether a jury must be charged on a lesser included offense. Moore v. State, 969 S.W.2d 4, 8 (Tex.Cr.App.1998). The first step is to decide whether the offense is a Alesser included offense@ as defined in Article 37.09 of the Code of Criminal Procedure. See TEX. CODE CRIM. PRO. ANN. art. 37.09 (Vernon 1981); Moore v. State, supra at 8. The second step requires an evaluation of the evidence to determine whether there is some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser offense, and not of the greater. Lofton v. State, 45 S.W.3d 649, 651 (Tex.Cr.App.2001); Moore v. State, supra at 8. The evidence must be evaluated in the context of the entire record. Moore v. State, supra at 8. There must be some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser included offense. Moore v. State, supra at 8. The court may not consider whether the evidence in question is credible, controverted, or in conflict with other evidence. Moore v. State, supra at 8. If there is evidence from any source that negates or refutes the element establishing the greater offense or if the evidence is so weak that it is subject to more than one reasonable inference regarding the aggravating element, the jury should be charged on the lesser included offense. Schweinle v. State, 915 S.W.2d 17, 19 (Tex.Cr.App.1996); Saunders v. State, 840 S.W.2d 390, 391‑92 (Tex.Cr.App.1992). Appellant recognizes that indecency with a child may be a lesser included offense of aggravated sexual assault. Cunningham v. State, 726 S.W.2d 151, 153‑55 (Tex.Cr.App.1987). Whether indecency with a child is a lesser included offense of aggravated sexual assault of a child is to be determined on a case‑by‑case basis. Cunningham v. State, supra at 154. The focus is Awhether the State=s case as presented to prove the offense charged included proof of [a lesser included offense].@ Ochoa v. State, 982 S.W.2d 904, 908 (Tex.Cr.App.1998); Cunningham v. State, supra at 155. Appellant argues that the jury should not have been charged with the lesser included offense of indecency with a child because there was sufficient evidence in the record to withstand a legal sufficiency challenge if the jury had chosen to convict appellant of aggravated sexual assault. Appellant is essentially asserting that an instruction for a lesser included offense should only be given if the evidence supporting the greater offense is legally insufficient. Appellant has not cited any authority that supports this proposition. Furthermore, his contention is inconsistent with the analysis that is used to determine if an instruction on a lesser included offense should be given because it requires an evaluation of the strength of the evidence presented to the jury to prove the greater offense. Here the critical factor distinguishing the two offenses is the element of penetration. J.M.=s equivocal testimony and her mother=s outcry testimony regarding the issue of penetration constituted some evidence from which a rational jury could have acquitted appellant of the greater offense while convicting him of the lesser included offense. Appellant=s second point of error is overruled. Factual Sufficiency of the Evidence Appellant challenges the factual sufficiency of the evidence in his first point of error. To determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). We review the fact finder=s weighing of the evidence and cannot substitute our judgment for that of the fact finder. Cain v. State, supra; Clewis v. State, supra. Due deference must be given to the jury=s determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000); Jones v. State, 944 S.W.2d 642 (Tex.Cr.App.1996), cert. den=d, 522 U.S. 832 (1997). This court has the authority to disagree with the fact finder=s determination Aonly when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.@ Johnson v. State, supra at 9. Citing Malik v. State, 953 S.W.2d 234, 240 (Tex.Cr.App.1997), appellant asserts that the factual sufficiency of the evidence must be reviewed against the hypothetically correct jury charge, rather than the actual charge. Appellant contends that we cannot consider the offense of indecency with a child in reviewing the factual sufficiency of the evidence supporting his conviction because the hypothetically correct jury charge in this case would not have included this offense as a lesser included offense. Appellant bases this contention on his argument that the jury should not have been charged on the lesser offense of indecency with a child. Appellant argues that we should only review the factually sufficiency of the evidence to determine if it supports a conviction for aggravated sexual assault. We have previously determined that the trial court did not err by charging the jury on the lesser included offense of indecency with a child. Accordingly, we review the factually sufficiency of the evidence to determine its support for appellant=s conviction for the offense of indecency with a child. The jury heard J.M.=s testimony regarding the events, as well as appellant=s denial that any inappropriate contact occurred. J.M.=s testimony was neither so weak nor appellant=s testimony so strong as to render appellant=s conviction for indecency with a child clearly wrong or manifestly unjust. Appellant=s first point of error is overruled. Definition of Reasonable Doubt In his third point of error, appellant contends that the trial court erred in failing to include a definition of reasonable doubt in the jury charge. As we noted in Baker v. State, 94 S.W.3d 684, 689 (Tex.App. B Eastland 2002, no pet=n), the Texas Court of Criminal Appeals held in Paulson v. State, 28 S.W.3d 570 (Tex.Cr.App.2000), that the definition of reasonable doubt set out in Geesa v. State, 820 S.W.2d 154 (Tex.Cr.App.1991), is no longer required to be given in the jury charge. The court handed down Paulson on October 4, 2000. Appellant was indicted in January 2001, and the trial began on September 10, 2001. Appellant contends that, because the offense is alleged to have occurred in November 1999, the trial court was required to give the definition as required by Geesa. The reasonable doubt instruction is procedural in nature. See Geesa v. State, supra. Procedural rules generally control litigation from their effective date. Wilson v. State, 473 S.W.2d 532 (Tex.Cr.App.1971); Montez v. State, 975 S.W.2d 370 (Tex.App. ‑ Dallas 1998, no pet=n). Therefore, Paulson was applied prospectively in this case. See Geesa v. State, supra; Baker v. State, supra. Moreover, in Arroyo, the San Antonio Court of Appeals reversed the defendant's conviction because the trial court failed to give the entire Geesa instruction. Arroyo v. State, 9 S.W.3d 330 (Tex.App. ‑ San Antonio 1999). The Court of Criminal Appeals reversed the San Antonio Court of Appeals for reconsideration in light of Paulson thereby indicating that Paulson applied even though it had not been issued at the time of the defendant=s trial. Arroyo v. State, 32 S.W.3d 868 (Tex.Cr.App.2000); see Bordman v. State, 56 S.W.3d 63, 72 (Tex.App. ‑ Houston [14th Dist.] 2001, pet=n ref=d). Appellant=s third point of error is overruled. Definition of Conduct Elements in Jury Charge Appellant argues in his fourth point of error that the trial court failed to limit the definitions of Aintentionally@ and Aknowingly@ to the relevant conduct elements of aggravated sexual assault and indecency with a child in the jury charge. TEX. PENAL CODE ANN. ' 6.03 (Vernon 2003) allows each element of an offense to be placed into one of three categories: (1) the nature of the conduct; (2) the result of the conduct; or (3) circumstances surrounding the conduct. McQueen v. State, 781 S.W.2d 600, 603 (Tex.Cr.App.1989); Alvarado v. State, 704 S.W.2d 36, 38 (Tex.Cr.App.1985); Baker v. State, supra at 690; Pitre v. State, 44 S.W.3d 616 (Tex.App. ‑ Eastland 2001, pet=n ref=d). The jury charge contained the following definitions for Aintentionally@ and Aknowingly@: A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Appellant contends that aggravated sexual assault of a child and indecency with a child are Anature of conduct@ offenses and that the trial court erred in including the Aresult of conduct@ element in its definitions of Aintentionally@ and Aknowingly.@ As noted previously, the jury acquitted appellant of the offense of aggravated sexual assault of a child. Accordingly, we do not address appellant=s contention as it relates to this offense because of the acquittal.[1] With respect to appellant=s contention as it relates to the offense of indecency with a child, he cites Caballero v. State, 927 S.W.2d 128, 130-31 (Tex.App. B El Paso 1996, pet=n ref=d), for the proposition that the offense of indecency with a child is a Anature of conduct@ offense. Relying on Caballero, appellant contends that the trial court erred by including the Aresult of conduct@ element in its definitions of Aintentionally@ and Aknowingly.@ The El Paso Court of Appeals reaffirmed Caballero in Washington v. State, 930 S.W.2d 695, 697-700 (Tex.App. B El Paso 1996, no pet=n), another case involving the offense of indecency with a child. The jury charge in Washington also included the Aresult of conduct@ element in its definition of Aintentionally.@ Washington v. State, supra at 698-700. The court determined that the inclusion of the Aresult of conduct@ element in the definition of Aintentionally@ did not constitute error Aunder the charge as a whole@ because the application paragraph of the jury charge correctly stated the elements of the offense. Washington v. State, supra at 699-700. The application paragraph in the jury charge in this case stated: Now, if you find from the evidence beyond a reasonable doubt that on or about November 21, 1999, in Dallas County, Texas, the defendant, John William Chambers, III, did then and there intentionally or knowingly engage in sexual contact by using his finger with [J.M.], a child younger than 14 years of age, you shall find the defendant guilty of indecency with a child and not aggravated sexual assault of a child. See Section 21.11(a)(1). The jury charge then defined Asexual contact@ as follows: ASexual contact@ means the touching by a person, including touching through clothing, of any part of the genitals of a child with the intent to arouse or gratify the sexual desire of any person. See TEX. PENAL CODE ANN. '21.11(c)(1) (Vernon 2003). As was the situation in Washington, the application paragraph, coupled with the statutory definition of Asexual contact,@ correctly stated the elements of indecency with a child. We agree with the holding in Washington that the inclusion in the jury charge of the complete statutory definitions of Aintentionally@and Aknowingly@ does not constitute error if the application paragraph correctly states the elements of the offense. Washington v. State, supra at 699-700; see Baker v. State, supra at 691. Moreover, appellant did not object to the jury charge; therefore, any error must be so egregious that appellant did not receive a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1985). Even if the trial court somehow erred in its charge, we find that appellant did not suffer egregious harm as a result of the court=s definitions of intentionally and knowingly. Appellant=s fourth point of error is overruled. Jury Instruction Regarding Eligibility for Good Conduct Time In his fifth point of error, appellant argues that the trial court erred in instructing the jury regarding the availability of good conduct time because he was not eligible either for release on mandatory supervision or for earlier parole eligibility based on the accrual of good conduct time. See TEX. GOV=T CODE ANN. '' 508.149(a)(5) & 508.145(d) (Vernon Pamph. Supp. 2004). TEX. CODE CRIM. PRO. ANN. art. 37.07, ' 4(a) (Vernon Supp. 2004) requires the trial court to instruct the jury with precise wording regarding parole and good conduct time. Appellant attacks the trial court=s compliance with this legislative mandate. The Texas Court of Criminal Appeals has determined that a trial court does not commit error when it instructs the jury in accordance with Article 37.07, section 4(a) even though the portion of the instruction regarding the accrual of good conduct time is inapplicable to the defendant. Luquis v. State, 72 S.W.3d 355, 363 (Tex.Cr.App.2002). Appellant=s fifth point of error is overruled. Admission of Videotape at Punishment Phase In his sixth point of error, appellant asserts that the trial court erred in admitting at the punishment phase a videotape depicting him engaging in sexual activity with an unidentified adult female. Appellant objected to the admission of the videotape on the ground that its prejudicial effect outweighed its probative value. See TEX.R.EVID. 403. Although the trial court agreed with appellant=s assertion, the trial court admitted the videotape based on its determination that the prejudicial effect of the videotape did not substantially outweigh its probative value under the standard set out in Rule 403. We review a court=s ruling on the admissibility of evidence for an abuse of discretion. Green v. State, 934 S.W.2d 92, 101‑02 (Tex.Cr.App.1996), cert. den=d, 520 U.S. 1200 (1997). We will not reverse such a ruling so long as it falls Awithin the >zone of reasonable disagreement.=@ Green v. State, supra at 102 (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Cr.App.1991)). Moreover, error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. See TEX.R.EVID. 103(a). During the guilt/innocence phase of the trial, the trial court permitted the State to offer oral testimony regarding the acts depicted on the videotape.[2] Jim Spurger, an investigator employed by the Dallas County District Attorney=s Office, testified about the contents of the videotape. The video depicted appellant and an unknown female engaging in various activities in various states of undress. Spurger testified that, at the beginning of the videotape, it appeared that appellant and the female were smoking crack cocaine. The videotape later depicted appellant engaging in sexual acts with the female while she appeared to be either asleep or unconscious. These acts included appellant touching and digitally penetrating the female sexual organ of the unidentified female for an extended period of time.[3] The trial court subsequently permitted the State to show the videotape to the jury during the punishment phase. Appellant argues that the videotape was extremely prejudicial because it suggested to the jury that he was Asexually depraved in general.@ At the punishment phase, the State may introduce evidence of any matter the court deems relevant to sentencing, including any extraneous bad acts. TEX. CODE CRIM. PRO. ANN. art. 37.07, ' 3(a) (Vernon Supp. 2004). The focus during the punishment phase of trial is the personal responsibility and moral blameworthiness of the defendant. Draheim v. State, 916 S.W.2d 593, 600 (Tex.App. B San Antonio 1996, pet=n ref=d). In Nenno, a case in which the defendant murdered a seven‑year‑old girl after sexually assaulting her, the Court of Criminal Appeals found no error in the admission of evidence of an encounter with another young girl in which the defendant pulled her broken bicycle into his driveway, fixed the chain, then patted her Aon her >butt=@ making her Afeel mad and sad.@ See Nenno v. State, 970 S.W.2d 549, 564 (Tex.Cr.App.1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex.Cr.App.1999). The court rejected Nenno=s Rule 403‑based objection, holding that Athe >inflammatory= nature of the evidence is that it tended to show that appellant was a child molester. Showing appellant to be a child molester was a perfectly legitimate purpose; and while the evidence was >prejudicial=, it was not unfairly so.@ Nenno v. State, supra at 564. As was the case in Nenno, the State=s attempt to establish appellant=s character for sexual depravity was a legitimate purpose for permitting the videotape to be shown at the punishment phase of appellant=s trial. We conclude that the trial court did not abuse its discretion by determining that the videotape was not unfairly prejudicial. See Draheim v. State, supra at 600-01. Moreover, even if the trial court committed error in permitting the videotape to be played to the jury, the record does not necessarily establish that appellant suffered harm from its admission. As a result of a prior felony conviction, the applicable punishment range for appellant=s conviction for indecency with a child was enhanced to the range of 5 to 99 years or life. See TEX. PENAL CODE ANN. '' 12.42(b) & 12.32(a) (Vernon 2003 & Supp. 2004). Accordingly, appellant=s sentence of confinement for a term of 11 years is near the bottom of the applicable punishment range. Given the nature of the offense for which he was convicted, the record does not establish that the admission of the videotape had a significant impact on the sentence imposed by the jury. Appellant=s sixth point of error is overruled. This Court=s Ruling The judgment of the trial court is affirmed. TERRY McCALL JUSTICE March 25, 2004 Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J. [1]We addressed a similar contention as it relates to the offense of aggravated sexual assault of a child in Baker v. State, supra at 690-92. [2]Appellant does not raise a complaint on appeal regarding the admission of this evidence during the guilt/innocence phase. [3]We have viewed the videotape in our consideration of appellant=s contention. Spurger accurately described the acts depicted on the videotape in his testimony. We additionally note that the videotape is lengthy and quite graphic.