IN THE
TENTH COURT OF APPEALS
No. 10-13-00466-CR
No. 10-13-00467-CR
No. 10-14-00005-CR
ANTHONY LYNN THIBODEAUX,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 87th District Court
Freestone County, Texas
Trial Court Nos. 12-154-CR; 12-156-CR; 12-155-CR
MEMORANDUM OPINION
Anthony Lynn Thibodeaux was convicted of three separate offenses: one of
sexual assault of a child and two of indecency with a child by contact. TEX. PENAL CODE
ANN. §§ 22.011; 21.11(a)(1) (West 2014). Each offense occurred separately but was
committed against the same victim and on the same date. Thibodeaux was sentenced to
10 years in prison for the sexual assault conviction and four years in prison for each
conviction of indecency with a child. Because Thibodeaux was not egregiously harmed
by the trial court’s jury charge error, because the trial court did not err in failing to
narrow the scope of the limiting instruction in the jury charge, and because Brady v.
Maryland does not apply to Thibodeaux’s cell phone records, the trial court’s judgment
is affirmed.
CHARGE ERROR
Thibodeaux’s first two issues in these appeals relate to jury charge error to which
he did not object at trial. Thibodeaux contends in his first issue that the trial court
erroneously instructed the jury in the sexual assault case (10-13-00466-CR) regarding the
applicable culpable mental states. He contends in his second issue that the trial court
also erroneously instructed the jury in the indecency cases (10-13-00467-CR & 10-14-
00005-CR) regarding the applicable culpable mental states. In response to the first issue,
the State “concedes that the jury charge … incorrectly instructed the jury as if sexual
assault were a result-oriented offense and not a conduct-oriented offense, [and thus]
incorrectly defined ‘intentionally’ and ‘knowingly.’” In response to the second issue,
the State also “concedes the trial court incorrectly instructed the jury in the two
indecency cases by: (1) erroneously defining the offense of indecency with a child by
contact; (2) providing an erroneous definition of the term ‘sexual contact;’ (3)
erroneously including a definition for the term ‘knowledge;’ and (4) erroneously
requiring a finding that Appellant acted ‘intentionally or knowingly.’” The State
argues, however, that in both instances, Thibodeaux was not egregiously harmed.
Thibodeaux v. State Page 2
Because the State concedes error, we proceed to a harm analysis. Unobjected-to
jury charge error will not result in reversal of a conviction in the absence of "egregious
harm." Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). In examining the
record for egregious harm, we consider the entire jury charge, the state of the evidence,
the 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. 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).
Sexual Assault
The State agrees that because the trial court incorrectly instructed the jury as if
sexual assault were a result-oriented offense, correct definitions of intentionally and
knowingly were omitted from the charge. The application paragraph, however,
correctly instructed the jury on the applicable law. See TEX. PENAL CODE ANN. §
22.011(a)(2)(A) (West 2014). Further, the parties agree that the evidence did not focus
on Thibodeaux’s intent or knowledge but rather whether he committed the offense at
all. Neither counsel addressed Thibodeaux’s intent or knowledge in their respective
arguments, focusing instead on whether the offense occurred at all. Generally, in
regard to the culpable mental state, egregious harm is not found when intent is not a
Thibodeaux v. State Page 3
contested issue. See Saldivar v. State, 783 S.W.2d 265, 268 (Tex. App.—Corpus Christi
1989, no pet.) ("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.'"); 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.").
See also Reed v. State, 421 S.W.3d 24, 30 (Tex. App.—Waco 2013, pet. ref’d). Thibodeaux
asserts, though, that the charge error caused him egregious harm because this charge,
along with the errors in the indecency offense jury charges, likely caused the jury to be
confused; and neither the attorneys nor the trial court did anything to clarify the jury’s
likely confusion. However, there is no indication in the record that the jury had any
difficulties with understanding the charge; and in voir dire, the State accurately set out
the elements it must prove to obtain a conviction which included the proper mental
state.
Indecency with a Child
In weighing the various factors to determine if any harm was egregious, the State
agrees that the charge errors in the indecency cases weigh in favor of finding egregious
harm. Nevertheless, intent and knowledge were not the focus of the disputed issues at
trial. Rather, the focus was on whether or not Thibodeaux committed the offenses at all.
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Further, although the State briefly addressed intent in its argument by mentioning the
correct mens rea for the offenses, the parties’ arguments primarily focused on whether
the offenses occurred. Thibodeaux again asserts, though, that the charge error caused
him egregious harm because this charge, along with the error in the sexual assault jury
charge, likely caused the jury to be confused; and neither the attorneys nor the trial
court did anything to clarify the jury’s likely confusion. However, there is no indication
in the record that the jury had any difficulties with understanding the charge.
Although the State incorrectly included “intentionally or knowingly” when first
referencing the elements of indecency with a child by contact in voir dire, the
prosecutor later correctly informed the jury panel of the elements of the offense.
Conclusion
Accordingly, based on this record, we cannot conclude that the charge error in
the sexual assault or indecency cases affected the very basis of those cases, deprived
Thibodeaux of a valuable right, vitally affected his defensive theory, or made a case for
conviction clearly and significantly more persuasive. We overrule issues one and two.
LIMITING INSTRUCTION
In his third issue, Thibodeaux contends the trial court failed to provide a
meaningful limiting instruction in all three jury charges with regard to extraneous
offense evidence. In other words, Thibodeaux complains that the instruction given in
the jury charge was too broad and should have been restricted in scope. Again,
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Thibodeaux did not object to the charge; thus, if the trial court erred, Thibodeaux has to
show egregious harm before a reversal is warranted. Almanza v. State, 686 S.W.2d 157,
171 (Tex. Crim. App. 1985).
Rule of Evidence 105(a) provides that "[w]hen evidence which is admissible as to
one party or for one purpose but not admissible as to another party or for another
purpose is admitted, the court, upon request, shall restrict the evidence to its proper
scope and instruct the jury accordingly." TEX. R. EVID. 105(a). Likewise, when
extraneous offense evidence is admitted, the trial court should, upon request, instruct
the jury that the evidence is limited to whatever specific purpose the proponent
advocated. Taylor v. State, 920 S.W.2d 319, 323 (Tex. Crim. App. 1996); TEX. R. EVID.
404(b). When no limiting instruction is given, the jury considers the evidence for all
purposes and no instruction is needed in the charge. Hammock v. State, 46 S.W.3d 889,
895 (Tex. Crim. App. 2001). Thus, it is the scope of the limiting instruction given, or not
given, at the time the evidence is introduced that defines what the jury can consider the
evidence for.
Here, the State sought to introduce extraneous offense evidence obtained from
Thibodeaux’s computers, arguing that the evidence showed motive, intent, absence of
mistake, plan, and preparation. See TEX. R. EVID. 404(b) (“evidence may be admissible
for another purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.”). Thibodeaux argued that
Thibodeaux v. State Page 6
the evidence was inadmissible under 404(b) and that the probative value of the
evidence was outweighed by its prejudicial effect. See id. 403. Some of the evidence
was excluded; some was admitted. As to the evidence that was admitted, the trial
court, upon a general request from Thibodeaux, gave a limiting instruction, prior to the
introduction of that evidence, which informed the jury that the evidence was admitted
for “the limited purpose to show proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident, and you may consider that
testimony only for that purpose and that purpose only.” While the State concedes the
scope of the instruction given was too broad, there was no objection to the instruction at
the time it was given. Thus, just as when no limiting instruction is requested, no charge
instruction is necessary, the trial court does not err by failing to give a more restrictive
instruction on the scope of the use of the evidence in the charge to the jury than what
was given initially without objection. The limiting instruction given in the charge in
these cases was the same limiting instruction given to the jury when the evidence was
admitted. Accordingly, the trial court in this instance did not err in failing to give a
more restrictive jury charge instruction, and Thibodeaux’s third issue is overruled.
BRADY
In his fourth issue, Thibodeaux asserts that the trial court abused its discretion in
denying Thibodeaux’s motion for new trial based on a Brady1 violation. Thibodeaux
1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
Thibodeaux v. State Page 7
alleged that the State failed to disclose that it possessed Thibodeaux’s cell phone records
in violation of Brady. We review a trial judge's denial of a motion for new trial under an
abuse of discretion standard. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014);
Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001).
Brady does "not apply when the appellant was already aware of the information."
Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002). Just as in Hayes, where Brady
did not apply to a letter the defendant wrote, Thibodeaux was already aware of his cell
phone texts and calls; thus, Brady does not apply to Thibodeaux’s own cell phone
records. See also Havard v. State, 800 S.W.2d 195, 204 (Tex. Crim. App. 1989) (Brady does
not apply to appellant’s own statement). Accordingly, the trial court did not abuse its
discretion in denying Thibodeaux’s motion for new trial. Thibodeaux’s fourth issue is
overruled.
CONCLUSION
Having overruled each issue on appeal, we affirm the trial court’s judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed July 30, 2015
Do not publish
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