JOSE CAVAZOS v. THE STATE OF TEXAS--Appeal from 404th District Court of Cameron County

 NUMBER 13-04-075-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  - EDINBURG

JOSE CAVAZOS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 404th District Court of Cameron County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Ya ez

Memorandum Opinion by Justice Ya ez

 

On December 4, 2003, a jury convicted appellant, Jose Cavazos, of one count of indecency with a child[1] and two counts of assault.[2] The trial court assessed his punishment at six years= imprisonment in the Texas Department of Criminal Justice BInstitutional Division and a $300 fine. We affirm.

The trial court has certified that this case is not a plea-bargain case and the defendant has the right of appeal.[3] As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court=s decision and the basic reasons for it.[4]

By one issue[5] appellant contends the trial court erred because it included in the jury charge an incorrect culpable mental state regarding the indecency with a child allegation.

In his sole issue, appellant argues that the application paragraph improperly included the mental state "knowingly," which authorized the jury to find appellant guilty on less proof than required by section 21.11. As a result, appellant argues he suffered egregious harm because the charge allowed the jury to convict him without considering whether he acted with the specific intent required by section 21.11 of the penal code.

An error in the jury charge is generally reviewed under an abuse of discretion standard.[6] Section 21.11 of the Texas Penal Code states, in relevant part

(a) A person commits an offense if, with a child younger than 17 years and

not the person's spouse, whether the child is of the same or opposite sex,

the person:

(1) engages in sexual contact with the child or causes the child to

engage in sexual contact;

. . . .

(c) In this section, "sexual contact" means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:

 

(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.[7]

The three conduct elements which may be involved in an offense are: (1) the nature of the conduct; (2) the result of the conduct; and (3) the circumstances surrounding the conduct.[8] An offense may apply any number of these conduct elements to a culpable mental state to form a criminalized behavior.[9]

 

Indecency with a child is a Anature of the conduct@offense and requires proof of the accused's intent to engage in the proscribed contact rather than an intent to bring about any particular result.[10] Intent is a fact question for the trier of fact and may be inferred from the acts, words, and conduct of the accused.[11] The intent to arouse or gratify may be inferred from conduct alone, and there is no requirement of an oral expression of intent.[12] The offense of indecency with a child is complete upon the contact accompanied by the requisite intent.[13]

The indictment in this case alleged that

[O]n or about the 3rd day of August, 2002 . . . [appellant] did then and there, with the intent to arouse or gratify the sexual desire of [appellant], . . . intentionally or knowingly engage in sexual contact with [the victim] by touching the genitals of [the victim], a child younger than 17 years and not the spouse of the defendant, with the [appellant=s] hand.

The relevant portions of the jury charge stated

[LawBIndecency With A Child]

Our law provides that a person commits an offense if, with a child younger than seventeen (17) years and not his spouse, whether the child is of the same or opposite sex, he touches the genitals of said child, with intent to arouse or gratify the sexual desire of the defendant.

[Definition of Requisite Intent]

A person acts intentionally, or with intent, with respect to the nature of his conduct when it is his conscious objective or desire to engage in the conduct.

. . . .

[Application]

Now, if you find from the evidence beyond a reasonable doubt that on or about August 3, 2002, in Cameron County, Texas, the defendant, Jose Cavazos, did then and there with the intent to arouse or gratify the sexual desire of said defendant, intentionally or knowingly engage in sexual contact . . . by touching the genitals of [the child] . . younger than seventeen years and not the spouse of the defendant, with the defendant=s hand, then you will find the defendant guilty.

. . . .

[Instruction on Lesser-Included Offense of Assault]

Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict ANot Guilty@ and next consider whether he is guilty of the lesser included offense of Assault.

[LawBAssault]

 

Our law provides that a person commits the offense of Assault, if a person intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

We note that the application paragraph disjunctively listed the culpable mental states of Aknowingly@ and Aintentionally@ with the specific intent necessary to complete the crime.[14] As a result, the jury could have convicted appellant without proper consideration of whether he acted with proper mens rea required by section 21.11.[15] As a result, we conclude the court=s charge to the jury is erroneous.[16] We will therefore review the record to determine whether the charge error harmed appellant.[17] However, because appellant did not object to the charge, we will reverse only if the error is so egregious and created such harm that appellant did not have a fair and impartial trial.[18]

 

Egregious harm is a difficult standard to prove, and such a determination must be done on a case by case basis.[19] Egregious error affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.[20] To determine if appellant suffered egregious harm, we consider (1) the entire charge; (2) the state of the evidence, including contested issues; (3) arguments of counsel; and (4) any other relevant information.[21]

We note that the charge included an instruction that if the jury had a reasonable doubt as to the indecency allegation, it was required to render a Anot guilty verdict.@Although the application paragraph of the indecency allegation improperly included Aknowingly@ in the disjunctive, the definitions section did not define Aknowingly.@ It provided the appropriate definition of the requisite intent required by section 21.11.[22] The charge also instructed the jury on the lesser-included offense of assault.

A substantial amount of evidence regarding appellant=s intent, which was contested, was presented to the jury. The victim testified that appellant confronted him in his bedroom as he played video games. According to the victim, appellant placed his hand inside the victim=s pants and touched his penis and testicles. The victim=s uncle also testified that as he walked through a hallway adjacent to the victim=s bedroom, he noticed that appellant and the victim were engaged in a Astruggle@ inside the bedroom. He further testified that after the struggle, the victim ran out of the bedroom and went to stand by his father. The victim=s mother testified that shortly after the incident, the victim told her what had occurred, and she then notified police regarding the incident. Detective David Martinez subsequently obtained a statement from appellant which was introduced into evidence at trial and states, in relevant part, AI reached down and slipped my hand underneath his pants and grabbed his eggs and told him >you have them big.= [The victim] . . . [then told] me to leave [him] alone. . . . [Maybe] I got out of hand. . . .@

 

During closing arguments, the State argued that appellant had touched the victim intentionally and characterized appellant as a pedophile. In contrast, appellant=s trial counsel argued that the State had not proved that appellant, either intentionally or knowingly, committed indecency with a child as alleged in the indictment.

In light of the substantial evidence presented by the State regarding appellant=s intent, and in consideration of the State=s argument that appellant specifically intended to commit the offense of indecency with a child, and after our review of the entire charge, under the facts and circumstances presented in this case, we cannot conclude that the error in the jury charge caused appellant egregious harm.[23] We therefore overrule appellant's sole issue on appeal.

The judgment of the trial court is affirmed.

_______________________

LINDA REYNA YA EZ,

Justice

Do not publish.

Tex.R.App.P. 47.2(b)

Memorandum Opinion delivered and

filed this the 22nd day of August, 2005.

 

[1] See Tex. Pen. Code Ann. ' 21.11(a)(1) (Vernon 2003).

[2] See id. ' 22.01 (Vernon Supp. 2004-05).

[3] See Tex. R. App. P. 25.2(a)(2).

[4] See Tex. R. App. P. 47.4.

[5] On appeal, appellant challenges only his conviction for indecency with a child.

[6] Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

[7] See Tex. Pen. Code Ann. ' 21.11 (Vernon 2003).

[8] See Rodriguez v. State, 24 S.W.3d 499, 502 (Tex. App.BCorpus Christi, pet. ref=d) (citing Tex. Pen. Code Ann. ' 6.03 (Vernon 1994)).

[9] See McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989).

[10] See Tex. Pen. Code Ann. ' 21.11 (Vernon 2003); Rodriguez, 24 S.W.3d at 502.

[11] See Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App.1999); Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App.1991); Wallace v. State, 52 S.W.3d 231, 234 (Tex. App.BEl Paso 2001, no pet.).

[12] See McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App.1981); Lozano v. State, 958 S.W.2d 925, 930 (Tex. App.BEl Paso 1997, no pet.); Tyler v. State, 950 S.W.2d 787, 789 (Tex. App.BFort Worth 1997, no writ).

[13] See Rodriguez, 24 S.W.3d at 502 (citing Caballero v. State, 927 S.W.2d 128, 130-31 (Tex. App.BEl Paso 1996, pet. ref'd)).

[14] See Rodriguez, 24 S.W.3d at 502.

[15] See id.

[16] See id.

[17] See Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985).

[18] See Ortiz v. State, 93 S.W.3d 79, 91 (Tex. Crim. App. 2002); Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App.1985).

[19] See Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App.1996).

[20] See id.

[21] See id.

[22] See Tex. Pen. Code Ann. ' 21.11 (Vernon 2003).

[23] See Rodriguez, 24 S.W.3d at 502 03; Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (stating that the jury is entitled to judge the credibility of the witnesses and may choose to believe all, some, or none of the witness's testimony); see also Manrique, 994 S.W.2d at 649; Hernandez, 819 S.W.2d at 810; Wallace, 52 S.W.3d at 234.