IN THE
TENTH COURT OF APPEALS
No. 10-12-00318-CR
MICHAEL JAMES REED, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2011-2422-C1
OPINION
In three issues, appellant, Michael James Reed Jr., challenges his convictions for
two counts of aggravated sexual assault of a child, a first-degree felony, and one count
of indecency with a child by contact, a second-degree felony. See TEX. PENAL CODE ANN.
§§ 21.11(a)(1), (d) (West 2011); see also id. § 22.021(a)(1)(B), (e) (West Supp. 2012). We
affirm.
I. BACKGROUND
Initially, appellant was charged by indictment with one count of continuous
sexual abuse of a child (Count 1), one count of aggravated sexual assault of a child
(Count 2), and one count of indecency with a child by contact (Count 3). Each of the
counts referenced acts allegedly perpetrated by appellant against P.M-G., appellant’s
niece who was younger than fourteen years old at the time of the incidents.
Thereafter, the State amended Count 1 of the indictment pertaining to the
allegation of continuous sexual abuse of a child. Instead, the State alleged another
count of aggravated sexual assault of a child. The case proceeded to trial.
At trial, several witnesses testified, including the child victim. At the conclusion
of the evidence, the jury found appellant guilty of all three charged offenses. The jury
assessed punishment as follows: (1) incarceration in the Institutional Division of the
Texas Department of Criminal Justice for life with a $10,000 fine for Counts 1 and 2; and
(2) twenty years’ incarceration with a $10,000 fine for Count 3. The trial court ordered
that the sentences run consecutively and certified appellant’s right of appeal. This
appeal followed.
II. THE JURY CHARGE
In his first issue, appellant contends that the charge failed to limit the definitions
of “intentionally” and “knowingly” to the relevant conduct elements of aggravated
sexual assault and allowed the jury to apply inappropriate portions of the definitions to
the facts. Appellant argues that, because of this error, he was egregiously harmed.
Reed v. State Page 2
A. Applicable Law
In reviewing a jury-charge issue, an appellate court’s first duty is to determine
whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.
App. 1996). If error is found, the appellate court must analyze that error for harm.
Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was
properly preserved by objection, reversal will be necessary if the error is not harmless.
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was
not preserved at trial by a proper objection, a reversal will be granted only if the error
presents egregious harm, meaning appellant did not receive a fair and impartial trial.
Id. To obtain reversal for jury-charge error, appellant must have suffered actual harm
and not just merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim.
App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).
Appellant admits that he did not object to the jury charge, and the record does
not indicate that appellant requested different definitions for “intentionally” and
“knowingly”; thus, he must show egregious harm. See Almanza, 686 S.W.2d at 171. In
examining the record for egregious harm, we consider the entire jury charge, the state of
the evidence, the final arguments of the parties, and any other relevant information
revealed by the record of the trial as a whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex.
Crim. App. 2006). 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.
Reed v. State Page 3
Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d
117, 121 (Tex. Crim. App. 2006).
B. Discussion
At the outset, we note that article 36.14 of the Texas Code of Criminal Procedure
provides that the trial court must provide the jury with “a written charge distinctly
setting forth the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14
(West 2007). In doing so, the abstract portion of the charge included the definitions of
“intentionally” and “knowingly,” as defined in section 6.03 of the Texas Penal Code.
See TEX. PENAL CODE ANN. § 6.03(a)-(b) (West 2011). Appellant argues that the inclusion
of these definitions in their entirety was erroneous because he believes that aggravated
sexual assault is a “result of conduct” offense. In other words, appellant asserts that the
inclusion of the full definitions of “intentionally” and “knowingly” combined with the
language contained in the application paragraph of the charge “allowed the jury to do
that which the law did not allow—to find Apellant [sic] guilty of aggravated sexual
assault by [the nature of] his conduct, rather than intending or knowing the prohibited
results.” In making this argument, appellant relies heavily on the Corpus Christi Court
of Appeals’ determination that aggravated sexual assault is a “result of conduct
offense.” See Saldivar v. State, 783 S.W.2d 265, 267 (Tex. App.—Corpus Christi 1989, no
pet.).
An examination of the case law governing this issue shows that the law is
unsettled regarding how the culpable mental states should be defined in a sexual-
assault charge. See, e.g., Belmares v. State, No. 03-11-00121-CR, 2011 Tex. App. LEXIS
Reed v. State Page 4
9273, at *5 (Tex. App.—Austin Nov. 23, 2011, pet. ref’d) (mem. op., not designated for
publication). In fact, the Austin Court of Appeals has recognized that:
Some courts of appeals have concluded that a full statutory
definition is permissible because sexual assault is either a result-of-
conduct offense or combines both result-of-conduct and nature-of-conduct
elements. See, e.g., Baker v. State, 94 S.W.3d 684, 690-91 (Tex. App.—
Eastland 2002, no pet.) (concluding that offense of aggravated sexual
assault of child involves both result-of-conduct and nature-of-conduct
elements and that trial court did not err in defining intentionally and
knowingly in terms of result-of-conduct); Murray v. State, 804 S.W.2d 279,
280-81 (Tex. App.—Fort Worth 1991, pet. ref’d) (concluding that trial court
did not err in submitting full statutory definitions of intentionally and
knowingly because aggravated sexual assault had not yet been
characterized as either “result-of-conduct” or “nature-of-conduct”
offense); Saldivar v. State, 783 S.W.2d 265, 267-68 (Tex. App.—Corpus
Christi 1989, no pet.) (concluding that sexual assault is “result-of-conduct”
offense and thus trial court did not err in including “result-of-conduct”
definition); see also Wagner v. State, No. 08-09-00021-CR, 2010 Tex. App.
LEXIS 4087, at *12-16 (Tex. App.—El Paso May 28, 2010, pet. ref’d) (not
designated for publication) (concluding that trial court does not err by
submitting full statutory definitions of “intentionally” and “knowingly”);
Hutson v. State, No. 05-09-00033-CR, 2009 Tex. App. LEXIS 7873, at *13-14
(Tex. App.—Dallas Oct. 8, 2009, no pet.) (mem. op., not designated for
publication) (“When an offense, such as aggravated sexual assault, is not
clearly a result-oriented or a nature-of-the-conduct type offense, it is not
error for the trial court to submit both in its definitions of knowingly and
intentionally.”).
Id. at **5-6.
This Court has stated that aggravated sexual assault is a conduct-oriented
offense in which the focus of the offense is on whether the defendant acted intentionally
or knowingly with respect to the nature of his conduct rather than the result of his
conduct. See, e.g., Garcia v. State, No. 10-09-00162-CR, 2010 Tex. App. LEXIS 2429, at **5-
6 (Tex. App.—Waco Mar. 31, 2010, no pet.) (mem. op., not designated for publication)
(citing Gonzales v. State, 304 S.W.3d 838, 848 (Tex. Crim. App. 2010) (stating that
Reed v. State Page 5
aggravated sexual assault is a conduct-oriented offense when considered in the context
of double-jeopardy and jury unanimity); Vick v. State, 991 S.W.2d 830, 832 (Tex. Crim.
App. 1999) (same)).1 As such, we do not find appellant’s contention that aggravated
sexual assault is a “result of conduct” offense to be persuasive.
Nevertheless, assuming without deciding that it was error for the jury charge to
include the full statutory definitions of “intentionally” and “knowingly,” the fact
remains that appellant did not object to the definitions at trial.2 As mentioned earlier,
appellant is not entitled to a reversal unless he was egregiously harmed by those
definitions. See Almanza, 686 S.W.2d at 171. And among the aforementioned items that
factor into an egregious-harm analysis, we may also consider the degree, if any, to
which the culpable mental states were limited by the application portion of the jury
1 In Vick v. State, the Texas Court of Criminal Appeals noted that:
In sum, Art. 22.021 is a conduct-oriented statute; it uses the conjunctive “or” to
distinguish and separate different conduct; and its various sections specifically define
sexual conduct in ways that usually require different and distinct acts to commit. These
considerations lead us to conclude that the Legislature intended that each separately
described conduct constitutes a separate statutory offense.
991 S.W.2d 830, 833 (Tex. Crim. App. 1999).
2In fact, the charge provided the following definitions for “intentionally” and “knowingly,”
which mirror those prescribed in section 6.03 of the Texas Penal Code:
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.
See TEX. PENAL CODE ANN. § 6.03(a)-(b) (West 2011).
Reed v. State Page 6
charge. See Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995); Hughes v. State,
897 S.W.2d 285, 296 (Tex. Crim. App. 1994); Cook v. State, 884 S.W.2d 485, 492 (Tex.
Crim. App. 1994).
In this case, although the trial court gave the full statutory definitions of the
culpable mental states in the abstract portion of the charge, the trial court limited the
scope of the definitions in the application paragraph pertaining to the alleged conduct:
As to the counts of Aggravated Sexual Assault of a Child-Counts I and II,
and Indecency with a Child by Contact-Count III, alleged in the
indictment, the State has the burden of proof. The State must prove each
of the elements in the charged offenses beyond a reasonable doubt. The
elements are set out below for each count. If each of you believe[s] the
State has proved each and every element of any count beyond a
reasonable doubt, you are required to return a verdict of guilty for that
count.
If you believe the State has failed to prove any element of a count of
the indictment, you are required to return a verdict of not guilty as to that
count. If you have reasonable doubt as to whether the Defendant is guilty
of a specific count, you are required to find the Defendant not guilty of
that count.
....
ELEMENTS-COUNT I
1. On or about the 1st day of September 2007;
2. in McLennan County, Texas;
3. the Defendant, MICHAEL JAMES REED, JR.;
4. did then and there intentionally or knowingly cause the
penetration of the sexual organ of [P.M.-G.], a child who was at the
time then and there younger than fourteen (14) years of age and not
the spouse of Defendant; by means of Defendant’s finger.
ELEMENTS-COUNT II
Reed v. State Page 7
1. On or about the 1st day of March, 2007;
2. in McLennan County, Texas;
3. the Defendant, MICHAEL JAMES REED, JR.;
4. did then and there intentionally or knowingly cause the
penetration of the sexual organ of [P.M.-G.], a child who was at the
time then and there younger than fourteen (14) years of age and not
the spouse of Defendant; by means of Defendant’s finger.
Thus, the jury was instructed that it could convict appellant of aggravated sexual
assault of a child only if it found that he had intentionally or knowingly caused the
penetration of the sexual organ of P.M.-G. with his finger. This is consistent with the
statutorily-prohibited conduct. See TEX. PENAL CODE ANN. § 22.021. When the
application paragraph correctly instructs the jury on the law applicable to the case, this
mitigates against a finding of egregious harm. See Patrick, 906 S.W.2d at 493; Hughes,
897 S.W.2d at 296-97; Pitre v. State, 44 S.W.3d 616, 621 (Tex. App—Eastland 2001, pet.
ref’d); see also Belmares, 2011 Tex. App. LEXIS 9273, at *9.
Furthermore, like Belmares, this was not a case in which intent was a contested
issue at trial. Appellant’s defense was not that he had accidentally touched P.M.-G. or
that he lacked the requisite mens rea to commit the charged offense. Instead, appellant
denied that the incident even occurred, and his theory during the trial was that the
child’s outcry was fabricated. Consequently, throughout trial and during closing
arguments, the parties focused on the credibility of the child victim, not on whether
appellant possessed the culpable mental states required to commit the offense.
Reed v. State Page 8
Accordingly, on this record, we cannot conclude that the alleged charge error
affected the very basis of the case, deprived appellant of a valuable right, vitally
affected appellant’s defensive theory, or made a case for conviction clearly and
significantly more persuasive. See Saldivar, 783 S.W.2d at 268 (“Where no defense is
presented which would directly affect an assessment of mental culpability, there is no
harm in submitting erroneous definitions of ‘intentionally’ and ‘knowingly.’”); see also
Jones v. State, 229 S.W.3d 489, 494 (Tex. App.—Texarkana 2007, no pet.) (“[T]he intent of
Jones in touching B.S.S., while it was part of the State’s required proof, was not a
contested issue and consequently Jones could not be egregiously harmed by the
definition of the intentional and knowing state of mind.”). We overrule appellant’s first
issue.
III. THE STATE’S JURY ARGUMENT
In his second issue, appellant complains about the State’s closing argument.
Specifically, appellant asserts that the State’s closing argument made an improper
appeal for sympathy for the alleged child victim.
A. Applicable Law
We review a trial court’s rulings on objections to argument for abuse of
discretion. York v. State, 258 S.W.3d 712, 717 (Tex. App.—Waco 2008, pet. ref’d). Proper
jury argument falls within one of four general areas: (1) summation of evidence; (2)
reasonable deductions from the evidence; (3) answers to arguments of opposing
counsel; and (4) pleas for law enforcement. Lagrone v. State, 942 S.W.2d 602, 619 (Tex.
Crim. App. 1997). Jury argument must be extreme or manifestly improper or inject new
Reed v. State Page 9
and harmful facts into evidence to constitute reversible error. Shannon v. State, 942
S.W.2d 591, 597 (Tex. Crim. App. 1996). Furthermore, in most cases, if error occurs, an
instruction to disregard will cure any error committed. Id.
B. Discussion
Appellant directs us to the following portion of the State’s closing argument, to
which appellant objected in the trial court:
[The State]: So throughout her entire life she’s had betrayal by her
mom, betrayal by her dad, who couldn’t be a father
figure, betrayal—what appeared to be betrayal by
every school system that she went to. She would get
in trouble every time because it’s hard to adjust.
Betrayal when she finally had the courage to talk
about the number of times that he betrayed her. Her
entire family betrayed her. The Bellmead Police
Department betrayed her.
This system put the burden on her. Now,
legally, the burden’s on the State. Did I have to stand
up there or sit up there and tell you about my period?
[Defense counsel]: Your Honor, we object to the plea for sympathy.
THE COURT: Overruled.
[The State]: A 13-year-old girl had to sit up there and answer
questions about whether she had started her period or
not in front of 12 strangers. That’s ridiculous. The
burden was on her.
We find the State’s closing argument to be a reply to appellant’s closing
argument, a summation of the evidence presented, and a plea for law enforcement. See
Lagrone, 942 S.W.2d at 619. The Texas Court of Criminal Appeals has held that a similar
jury argument was a proper plea for adequate punishment and law enforcement. See
Reed v. State Page 10
Stone v. State, 574 S.W.2d 85, 90 (Tex. Crim. App. 1978). According to the Stone court,
the following jury argument was deemed proper:
She will still have the scars of some sort that will bring her back to that
point in time when she was in that trailer and now she knows or has some
idea of the impact of what went on and she knows how it was bad and
wrong, and I’m sure it’s embarrassing to her, and don’t you know it will
always embarrass her if someone will know what happened to her back
when she was a little girl at the hands of this Defendant.
Now, that’s sad it really is, and you should think about her when
you’re assessing your punishment. Let’s think about her and think about
the other children that live in this community that are subjected to this
type of conduct by others and use your common sense.
Id.
Furthermore, a review of the testimony adduced at trial shows that appellant’s
main defensive theory was to challenge the credibility of P.M.-G. In his closing
argument, appellant repeatedly referenced instances where P.M.-G. got in trouble and
testimony where family members noted that P.M.-G. has lied on occasion. Appellant
put P.M.-G.’s credibility squarely at issue. In its closing argument, the State explained
why P.M.-G. had no motive to lie in court, especially considering the embarrassing
nature of the testimony. In addition, the record reflects that P.M.-G. agreed with the
prosecutor’s question that appellant stuck his fingers in the area “where [P.M.-G.’s]
period comes out.” Thus, the State’s commentary also constituted a summation of
P.M.-G.’s testimony. And finally, the betrayal comments refer to the time lag involved
in investigating this case.3 The State, in its closing argument, pleaded with the jury to
3The amended indictment indicates that the alleged instances of aggravated sexual assault of a
child and indecency with a child by contact occurred in mid to late 2007. T.M., P.M.-G.’s mother, testified
that P.M-G. made an outcry to her in 2008, and she immediately went to the police. However, appellant
Reed v. State Page 11
believe P.M.-G.’s testimony and to hold appellant accountable for his action—or, in
other words, made a plea for law enforcement.
Therefore, based on the foregoing, we cannot say that the trial court abused its
discretion in overruling appellant’s objection to the State’s closing argument. See York,
258 S.W.3d at 717; see also Lagrone, 942 S.W.2d at 619. We overrule appellant’s second
issue.
IV. APPELLANT’S MOTION FOR MISTRIAL
In his third issue, appellant complains that the trial court erred by overruling his
motion for mistrial after the trial court incorrectly told the venire panel that appellant
was charged with continuous sexual abuse of a child when Count 1 of the indictment
had been amended to allege the offense of aggravated sexual assault of a child.
A. Applicable Law
We review the denial of a motion for mistrial under an abuse-of-discretion
standard. Archie v. State, 221 S.W.3d 695, 699-700 (Tex. Crim. App. 2007). Under this
standard, we uphold the trial court’s ruling as long as the ruling is within the zone of
reasonable disagreement. Id. “‘A mistrial is a device used to halt trial proceedings
when error is so prejudicial that expenditure of further time and expense would be
wasteful and futile.’” Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (quoting
Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). It is appropriate only for “a
narrow class of highly prejudicial and incurable errors.” Id.; see Hawkins v. State, 135
was not indicted for the charged offenses until December 7, 2011. T.M. recounted that more than two
years elapsed before anything was done by police in this case.
Reed v. State Page 12
S.W.3d 72, 77 (Tex. Crim. App. 2004). Therefore, a trial court properly exercises its
discretion to declare a mistrial when, due to the error, “an impartial verdict cannot be
reached” or a conviction would have to be reversed on appeal due to “an obvious
procedural error.” Wood, 18 S.W.3d at 648 (“A mistrial is required only when the
improper question is clearly prejudicial to the defendant and is of such character as to
suggest the impossibility of withdrawing the impression produced on the minds of the
jurors.”); see Ladd, 3 S.W.3d at 567.
B. Discussion
In the instant case, after the venire panel was sworn and seated, the trial judge
gave the venire panel instructions and information about the offenses for which
appellant was charged. In doing so, the trial judge erroneously read from the original
indictment, which stated that appellant was charged with continuous sexual abuse of a
child.4 After a discussion off the record with the attorneys, the trial judge corrected
himself and stated: “All right. Ladies and gentlemen of the jury, the first count of the
indictment does not allege continuous sexual assault; it alleged aggravated sexual
assault of a child.” After another discussion off the record, appellant moved for a
mistrial, which was subsequently denied. The trial judge did, however, issue the
following instruction:
Ladies and gentlemen, I want to instruct you that the charges in the
indictment charge aggravated sexual assault of a child—aggravated
sexual assault, Count I, aggravated sexual assault, Count II, and indecency
with a child, Count III. He is not charged with anything about continuous
4 Specifically, the trial judge’s comment, which appellant complains about, was that: “I can tell
you that this defendant stands charged with continuous sexual abuse of a child, Count 1; aggravated
sexual assault of a child, Count II; and indecency with a child, Count III.”
Reed v. State Page 13
sexual assault of the child; that was my mistake. That was the Court’s
mistake.
Based on our review of the record, we cannot say that the trial court abused its
discretion in denying appellant’s motion for mistrial. See Archie, 221 S.W.3d at 699-700.
Besides appellant’s speculation, there is no indication that the trial judge’s inadvertent
misstatement about the indictment undermined the presumption of innocence. The
trial judge, on two occasions, informed the venire panel that appellant was charged
with aggravated sexual assault of a child, rather than continuous sexual abuse of a
child. The Texas Court of Criminal Appeals has held that, in most cases, any harm can
be cured by such instructions. See Wood, 18 S.W.3d at 648 (citing Hernandez v. State, 805
S.W.2d 409, 413-14 (Tex. Crim. App. 1990)); see also Ladd, 3 S.W.3d at 567. Moreover, the
law generally presumes that instructions to disregard and other cautionary instructions
will be duly obeyed by the jury. See Archie v. State, 340 S.W.3d 734, 741 (Tex. Crim. App.
2011); see also Lewis v. State, No. 10-09-00322-CR, 2011 Tex. App. LEXIS 6074, at *7 (Tex.
App.—Waco Aug. 3, 2011, no pet.) (mem. op., not designated for publication).
Accordingly, we must presume that the venire panel understood that appellant was
charged with aggravated sexual assault of a child, rather than continuous sexual abuse
of a child.
In any event, in support of this issue, appellant relies heavily on the Texas Court
of Criminal Appeals’ decision in Blue v. State. 41 S.W.3d 129 (Tex. Crim. App. 2000). In
Blue, the court concluded that a trial judge’s comments: (1) about a delay caused by
defendant’s vacillations regarding a plea deal; (2) that the defendant should have
Reed v. State Page 14
accepted the plea deal; and (3) about a defendant’s right to testify “imparted
information to the venire that tainted the presumption of innocence.” Id. at 130, 132. In
our opinion, the inadvertent comment by the trial judge in this case is not comparable
to or as egregious as the comments made by the trial judge in Blue. See id. at 130. As
such, we do not find the Blue case to be persuasive in this matter.
Therefore, based on the foregoing, we cannot say that the trial court abused its
discretion in denying appellant’s motion for mistrial. See Archie, 221 S.W.3d at 699-700.
We overrule appellant’s third issue.
V. CONCLUSION
Having overruled all of appellant’s issues on appeal, we affirm the judgments of
the trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed September 5, 2013
Publish
[CRPM]
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