RUBIN LEMMONS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued December 23, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00205-CR
No. 05-08-00206-CR
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RUBIN LEMMONS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause Nos. F05-73035-L and F08-00006-L
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MEMORANDUM OPINION
Before Chief Justice Thomas and Justices Morris and Francis
Opinion By Justice Francis
        A jury convicted Rubin Lemmons on two charges of aggravated sexual assault of a child under fourteen years of age and assessed two ninety-nine-year sentences. In four issues, appellant complains about the factual sufficiency of the evidence to support his convictions and charge error. We affirm the trial court's judgments.
        Appellant met the parents of six-year-old S.W. in April 2005 while helping them to corral some loose horses; appellant was sixty-five years old. Soon after meeting them, appellant began to babysit S.W. because her mother was ill and unable to care for her while S.W.'s father was at work. Appellant babysat S.W. nearly every day and even moved his trailer onto the property of S.W.'s parents. S.W. said she and appellant would watch movies and games. Soon, appellant began touching S.W. in “spots” where she did not want to be touched. S.W. testified appellant touched inside her “tee-tee” with his “pee-pee” more than once and it hurt her. Through the use of diagrams of male and female bodies, she identified a “tee-tee” as the female sexual organ and a “pee-pee” as the male sexual organ. On one occasion, S.W. said appellant put his hand underneath her clothes and touched inside her “tee-tee.” S.W. said she threatened to tell if appellant did not stop. She said appellant stopped, but he told her not to tell or she would “get in trouble.” S.W. said she felt like she was the one “being bad.” The abuse occurred in the living room and bedroom of appellant's trailer.
        In July 2005, appellant suddenly left Texas for Oregon, saying he wanted to be with his daughter and granddaughter. Shortly after he left, S.W.'s mother asked S.W. if appellant had done anything to her, and she said yes. S.W. told her mother she kept quiet about the abuse because appellant said she would be put up for adoption if she told. A medical examination of S.W. was normal, but Dr. Matthew Cox explained that less than five percent of examinations show any definitive injury, particularly when the abuse occurred more than a month earlier, as here.
        At punishment, appellant's daughter, Diane Hebert, who was thirty-five years old at trial, testified appellant fondled her when she was about ten years old. Appellant threatened to kill her mother if she told, and Hebert did not tell for many years. During her adult life, she did not see much of her father, but the two reconnected in 2003 when appellant told her “everything was different” and he wanted to be a father and grandfather.
        In July 2005, appellant made a surprise visit to her in Portland, Oregon. Shortly after his arrival, Hebert had a party. During the party, appellant kissed her on the mouth. Hebert pushed him away. After the incident, Hebert asked her eight-year-old daughter, A.H., if anyone had touched her inappropriately. A.H. said yes, and shortly afterwards, appellant was charged with sexually abusing A.H.
        At punishment, appellant denied abusing Hebert, A.H., and S.W. and essentially claimed the incidents either never happened or were misunderstood. With respect to Hebert, he said he came home drunk one night and went to bed. Later, appellant rolled over and woke up to Hebert saying he was “hurting” her. Appellant said he got up from bed and went to sleep in another room. He said Hebert was making up any story of abuse.
        Appellant said he pleaded no contest to charges related to A.H., not because he intentionally touched A.H., but because he did not want her to have to testify at trial. Appellant explained that he was sleeping on the couch and awakened to find A.H. with her arms around his neck. When he sat up, he said A.H. “straddled” him. He told A.H. to get up and, as he moved, dry skin from a crack on his hand “caught on her panties.” He said the incident was an “accident.”
        As for S.W., he denied abusing her, saying the “only thing” he had done was to put anti-itch cream on flea bites on her legs, back, chest, and arms. He said the jury was “[a]bsolutely wrong” in convicting him and said he “deserve[d] justice.”
        In his first issue, appellant argues the evidence is factually insufficient to support his conviction. On a factual sufficiency challenge, we view all the evidence from a neutral perspective. Watson v. State, 204 S.W.3d 404, 415 (Tex. 2006). The evidence, though legally sufficient, is factually insufficient if it is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or if, considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007). A clearly wrong and unjust verdict occurs where the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. A factual sufficiency review permits the reviewing court to substitute its judgment for the jury on credibility and weight determinations but only “to a very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007) (explaining that factual sufficiency jurisprudence still requires appellate court to afford “due deference” to jury's determination).
        Appellant argues the evidence is factually insufficient because S.W. is not a credible witness. He argues S.W.'s testimony conflicted with her mother's testimony as to when S.W. told her mother appellant was abusing her. S.W. testified she told her mother appellant was a “bad man,” apparently before appellant left town, and she did not want to go back to his trailer; S.W.'s mother testified she did not learn until after appellant left town that he had been abusing S.W.
        Even if there is some conflict between S.W. and her mother's testimony regarding the circumstances of S.W.'s disclosure of the abuse, such a conflict would not render the evidence factually insufficient. It was the jury's role to assess the credibility of the witnesses who testified in this case, particularly S.W. S.W. testified appellant penetrated her sexual organ with his sexual organ and hand, on many occasions. She testified it “hurt” and appellant warned her not to tell. Viewing the evidence in a neutral light, we conclude the verdicts are not clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. We overrule the first issue.
        Appellant's issues two, three, and four seek reversal because of alleged errors in the jury charge. He argues the trial court (1) failed to limit the definitions of “intentionally” and “knowingly” to the nature of his conduct, (2) improperly provided a partial definition of reasonable doubt, and (3) failed to instruct the jury on the consequences of the parole laws as required by statute.
        In reviewing a claim of jury charge error, this Court follows a two-step process. First, we decide if error exists, and if so, we determine if the error caused the defendant to suffer sufficient harm to require reversal. Hutch v. State, 922 S.W.2d 166, 170-71 (Tex. Crim. App. 1996). Here, appellant did not object to the charges at guilt-innocence or punishment; thus, if error is shown, he is entitled to reversal only if he suffered egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). Egregious harm consists of errors that affect the very basis of the case or that deprive the defendant of a vital right, vitally affect a defensive theory, or make the case for conviction or punishment clearly and significantly more persuasive. Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991). In making this determination, we examine the entire charge, the state of the evidence, including contested issues, arguments of counsel, and any other relevant information. Almanza, 686 S.W.2d at 171.
        We begin with appellant's second issue in which he argues that aggravated sexual assault is a nature of the conduct offense, and the trial court should have limited the definitions of intentionally and knowingly accordingly. Instead, he asserts, the trial court “simply set out the full definitions of intentionally and knowingly” from section 6.03 of the Texas Penal Code.
        The trial court submitted the following definitions of “intentionally” and “knowingly” to the jury:
 
        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.
 
        Three “conduct elements” can be involved in an offense: (1) nature of the conduct, (2) result of the conduct, and (3) circumstances surrounding the conduct. McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). A particular offense may contain one or more of these conduct elements. Id. When an offense is either a result oriented or nature of the conduct offense, the court should limit the statutory definitions of knowingly and intentionally to the culpable mental state required. Murray v. State, 804 S.W.2d 279, 281 (Tex. App.-Fort Worth 1991, pet. ref'd); Saldivar v. State, 783 S.W.2d 265, 267-68 (Tex. App.-Corpus Christi 1989, no pet.).
        Even if we assume the trial court erred in providing the definitions with respect to result of conduct, we cannot conclude appellant was egregiously harmed. Appellant's sole argument as to egregious harm is that the jury may have been confused by the inclusion of improper conduct elements, although he fails to present any explanation, argument, or analysis as to how. Looking at the charge as a whole and after reviewing the record, we fail to see how the jury could have been confused.
        Under the respective application paragraphs, the jury had to find, beyond a reasonable doubt, that appellant did “intentionally or knowingly” cause the penetration of the female sexual organ of S.W. by appellant's hand and did “intentionally or knowingly” cause the contact or penetration of the female sexual organ of S.W. by appellant's sexual organ, before it could return guilty verdicts. Thus, the charges required the jury to find appellant engaged in the prohibited conduct with the requisite intent. Moreover, appellant's defense at trial was the crimes never happened. He did not raise any issue with respect to his intent or culpable mental state or claim he did not intend the result, rather than the nature, of his conduct. We overrule the second issue.
        In his third issue, appellant complains the trial court erred by instructing the jury that “[i]t is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all reasonable doubt concerning the defendant's guilt.” He argues this instruction provides a definition of reasonable doubt and therefore violates the Texas Court of Criminal Appeals's holding in Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). The court of criminal appeals has determined this issue against appellant, concluding that a trial court does not abuse its discretion in including this precise instruction in the jury charge. See Woods v. State, 152 S.W.3d 105, 115 (Tex. Crim. App. 2004). We overrule the third issue.
        In his fourth issue, appellant complains the trial court erred in failing to instruct the jury on the consequences of parole law as required by article 37.07, section 4(a) of the Texas Code of Criminal Procedure. Further, relying on Sodipa v. State, 815 S.W.2d 551, 556 (Tex. Crim. App. 1990), he asserts the error is not subject to harm analysis and therefore makes no argument as to how he was harmed.
        The charge did not contain the statutory parole instruction and was therefore erroneous. We do not agree, however, that automatic reversal is required. Since Sodipa, the court of criminal appeals has held that “[e]xcept for certain federal constitutional errors labeled by the United States Supreme Court as 'structural,' no error, whether it relates to jurisdiction, voluntariness of a plea, or an other mandatory requirement, is cateogorically immune to a hamless error analysis.” Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). The court has since reemphasized that holding, making clear that statutory violations cannot be deemed structural errors. See Gray v. State, 159 S.W.3d 95, 97-98 (Tex. Crim. App. 2005). Accordingly, we review the error for egregious harm. See Huizar v. State, 12 S.W.3d 479, 483-84 (Tex. Crim. App. 2000); Almanza, 686 S.W.2d at 171.
        Initially, we note that the omitted parole law instruction was designed to increase sentences juries assess and therefore benefits the State, not the defendant. See Grigsby v. State, 833 S.W.2d 573, 576 (Tex. App.-Dallas 1992, pet. ref'd). Moreover, the circumstances and nature of the crime as well as the evidence adduced at punishment support a conclusion that appellant did not suffer egregious harm.         The jury convicted appellant of penetrating the sexual organ of a six-year-old girl with his penis and hand. The abuse happened on several occasions while appellant was babysitting S.W., and appellant told S.W. she would get in trouble if she told and would be put up for adoption. When appellant suddenly decided to leave Texas, he went to Oregon to visit his daughter and eight- year-old granddaughter, A.H. Within only a matter of a few weeks, appellant had sexually abused A.H. and was, at the time of trial, serving a prison sentence in Oregon. Moreover, his daughter testified he sexually abused her when she was ten years old and threatened to kill her mother if she told. In the face of all of this evidence, appellant refused to accept responsibility for his conduct, explaining that the incidents with his daughter and granddaughter were either misunderstandings or accidents. He also denied sexually abusing S.W., explaining that he only rubbed anti-itch cream on flea bites on her legs, back, chest, and arms.
        In addition to the evidence, the charge instructed the jury that appellant could receive five to ninety-nine years or life in prison and an optional fine of $10,000. The charge did not contain any language relating to parole or consideration of parole, and neither the State nor defense mentioned parole in closing argument. During argument, the State argued appellant had been abusing young girls “practically his whole life” and urged the jury to protect society from appellant. During their deliberations, the jury sent a note to the trial court asking two questions:
 
        (1) What parole period applies to the sentences rendered? Can a stipulation be made 'with and/or without parole'?
 
 
 
        (2) Will the two sentences be served consecutively or concurrently (including Portland sentence)?
 
        The trial court responded, “You are instructed that you have all the law and the evidence. Please, continue your deliberations.” The jury then returned the ninety-nine-year sentences.
        Had the trial court delivered a proper charge, the jury would have known that appellant would have to serve at least thirty years on any sentence of sixty years or more. They also would have been told “not to consider the manner in which the parole law may be applied to this particular defendant.” To the extent appellant believes it is reasonable that the jury would have given him a lighter sentence had it received these instructions, we do not agree. Having considered the charge as a whole, arguments of counsel, the circumstances of the underlying offense, the overwhelming evidence that appellant was a sexual predator of young girls, and appellant's own testimony denying any wrongdoing, we cannot conclude the failure to give an instruction - designed to increase a defendant's sentence, not lower it - egregiously harmed appellant.
        We affirm the trial court's judgments.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
080205F.U05