In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-17-00392-CR
___________________________
RAYMOND WEBSTER MYERS, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 271st District Court
Wise County, Texas
Trial Court No. CR19183
Before Sudderth, C.J.; Pittman and Womack, JJ.
Memorandum Opinion by Justice Pittman
MEMORANDUM OPINION
INTRODUCTION
A jury convicted Appellant Raymond Webster Myers of continuous sexual
abuse of a child, and the trial court sentenced him to twenty-five years’ confinement.
In the indictment, Count I charged Appellant with committing continuous sexual
abuse of a child by committing two or more acts of indecency with a child by
touching her genitals. See Tex. Penal Code Ann. § 21.02(a)–(b), (c)(2), (d), (h).
Appellant was also indicted on two counts of indecency with a child by contact. See
id. § 21.11(a)(1), (c). The count involving the same complainant as Count I alleged
that Appellant touched her breast (Count II), and the remaining count alleged that he
touched a second child’s genitals (Count III). See id. The State abandoned both of
the indecency-with-a-child-by-contact counts. 1
In one issue, Appellant contends that the trial court erroneously defined “acts
of sexual abuse” and “sexual contact” in the jury charge so as to authorize the jury to
convict him of continuous sexual abuse of a child based on his alleged touching of the
complainant’s breast, even though the continuous-sexual-abuse-of-a-child statute
specifically excludes that type of sexual contact (and that type of indecency with a
1
We therefore refer to the complainant in the only live count, Count I, when
we use that term.
2
child by contact) as an element. See id. § 21.02(c)(2). Because we hold that the
unpreserved error did not cause egregious harm, we affirm the trial court’s judgment.2
DISCUSSION
I. The Trial Court Erred by Including Breast-Touching in the Definitions
in the Abstract Portion of the Jury Charge.
We must review “all alleged jury-charge error . . . regardless of preservation in
the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In
reviewing a jury charge, we first determine whether error occurred; if not, our analysis
ends. Id.
Touching a child’s breast, including touching through clothing, does not qualify
as an “act of sexual abuse” under the continuous-sexual-abuse-of-a-child statute. See
Tex. Penal Code Ann. § 21.02(c)(2). We therefore agree with the parties that the trial
court erred in the abstract portion of the charge (1) by not carving out indecency with
a child by touching her breast from the definition of “[a]ct of sexual abuse” and (2) by
including breast-touching in the definition of “[s]exual contact.” However, Appellant
did not object to the jury charge.
II. We Decide Whether Unpreserved Error in the Jury Charge Causes
Egregious Harm.
Unpreserved charge error warrants reversal only when the error resulted in
egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013); Almanza
2
Appellant does not challenge the sufficiency of the evidence to support his
conviction; we therefore omit a summary of facts.
3
v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see Tex. Code
Crim. Proc. Ann. art. 36.19. The appropriate inquiry for egregious harm is fact- and
case-specific. Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013); Taylor v.
State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).
In making an egregious-harm determination, we must consider “the actual
degree of harm . . . in light of the entire jury charge, the state of the evidence,
including the contested issues and weight of probative evidence, the argument of
counsel and any other relevant information revealed by the record of the trial as a
whole.” Almanza, 686 S.W.2d at 171. See generally Gelinas, 398 S.W.3d at 708–
10 (applying Almanza). Errors that result in egregious harm are those “that affect the
very basis of the case, deprive the defendant of a valuable right, vitally affect the
defensive theory, or make a case for conviction clearly and significantly more
persuasive.” Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at 172). The
purpose of this review is to illuminate the actual, not just theoretical, harm to the
accused. Almanza, 686 S.W.2d at 174.
III. The Harm Caused by This Error Was Not Egregious.
The State argues that the harm was not egregious. We agree.
A. The Entire Jury Charge Weighs Against an Egregious-Harm
Finding.
On one hand, the errors in the abstract portion of the charge discussed above
are exacerbated by related statements in that portion. The trial court instructed the
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jury that it did not have “to agree unanimously on which specific acts of sexual abuse
were committed.” On the other hand, the indictment is mentioned multiple times in
the abstract portion of the charge, and the indictment charged Appellant with
committing continuous sexual abuse of a child by touching the complainant’s genitals.
Significantly, the application portion of the jury charge tracks Count I of the
indictment correctly, properly limiting the jury to considering only Appellant’s alleged
acts of indecency of a child based on his touching the complainant’s genitals. See
Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012) (explaining that the
application paragraph, not the abstract paragraph, authorizes a conviction); cf.
Yzaguirre v. State, 394 S.W.3d 526, 530 (Tex. Crim. App. 2013) (noting in dicta that
“[w]e look at the wording of the application paragraph to determine whether the jury
was correctly instructed in accordance with the indictment and also what the jury
likely relied upon in arriving at its verdict, which can help resolve a harm analysis”)
(citations omitted). The application portion of the charge mitigates the harm caused
by the error complained of. Overall, this factor weighs against finding egregious
harm. See Smith v. State, 397 S.W.3d 765, 771 (Tex. App.—San Antonio 2013, no pet.)
(concluding no egregious harm when application paragraph correctly stated the law
regarding continuous sexual abuse of a child).
B. The Evidence Weighs Against an Egregious-Harm Finding.
We look at the state of the evidence to determine whether the evidence made it
more or less likely that the jury-charge error egregiously harmed Appellant. See
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Arrington v. State, 451 S.W.3d 834, 841 (Tex. Crim. App. 2015). Appellant does not
raise a sufficiency complaint on appeal. Considering the entire record, the evidence
sufficiently supports Appellant’s guilt of continuous sexual abuse of a child based on
his touching the complainant’s genitals on multiple occasions. The complainant
testified that Appellant touched and rubbed her breasts and genitals on many
occasions, beginning when she was around eight years old and ending just before her
twelfth birthday. The complainant’s mother testified that the complainant told her
that Appellant had touched her in her “private areas” under her clothes on “multiple”
occasions when she was asleep. The sexual assault nurse examiner (SANE) testified
that the complainant told her Appellant “started touching [her] private parts when
[she] went to [her] Grammy’s house”; “[h]e touched [her] private parts and up here—
and she pointed to her breasts—and he would rub [her;] and he did it a lot.”
The SANE also testified that:
• The complainant used “private parts” to identify her “vaginal
area”;
• The complainant indicated that Appellant had touched her vaginal
area with his fingers or hand, had masturbated her within her
labia, and had fondled her breasts and genitals;
• The complainant believed the sexual abuse began when she was
eight or nine years old and had last occurred in March before the
April 2016 examination; and
• The complainant was twelve years old at the SANE examination.
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Other evidence included culpable statements that Appellant made to his adult
daughter and texts he sent his wife from which his culpability could be inferred, but
none of those were specifically incriminatory regarding the touching of the
complainant’s genitals as opposed to her breasts. On the other hand, there was no
evidence that Appellant touched only the complainant’s breasts. Instead, the
defensive theory was that he had not touched the complainant inappropriately at all.
The jury necessarily found the complainant credible and rejected the defensive theory.
This factor weighs against finding egregious harm. See Arrington, 451 S.W.3d at
844.
C. The Parties’ Arguments Weigh Against a Finding of Egregious
Harm.
For this factor, we address whether any statement made by the parties or the
trial court during trial increased or decreased the effect of the error. Id. The State
mentioned breasts once in its opening statement. In examining witnesses, the State
mentioned breasts once in questioning Appellant’s daughter and twice in questioning
the complainant after she had already testified that Appellant had touched both her
genitals and her breasts. Only defense counsel mentioned breasts in closing
arguments, and it was just once. Neither side clarified that the breast-touching
allegations could not contribute to a finding of guilt in its closing argument. But the
State did direct the jury to focus on the application paragraph, which properly tracks
the indictment relying on genital contact. Given the mixed results, we conclude that
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this factor is neutral. See de la Luz Torres v. State, 570 S.W.3d 874, 883 (Tex. App.—
Houston [1st Dist.] 2018, pet. ref’d).
D. Neither Party Points to Other Relevant Information.
The parties focus on the jury charge, the evidence, and the arguments of
counsel. Neither points to other categories. We note that other courts have
considered the jury’s rejection of a charged count and whether the jury asked for
clarification during deliberations. See Flores v. State, 513 S.W.3d 146, 161 (Tex. App.—
Houston [14th Dist.] 2016, pet. ref’d). The jury here did send a note, but it only asked
for a transcript. Further, only one count was submitted to the jury, and it convicted
Appellant of that count. This factor is neutral. See de la Luz Torres, 570 S.W.3d at 883.
E. The Factors Identified in Almanza Weigh Against Finding
Egregious Harm.
No factor weighs in favor of an egregious-harm finding, two factors are neutral,
and two factors militate against an egregious-harm finding. We therefore cannot say
that the trial court’s errors in the abstract portion of the jury charge “affect[ed] the
very basis of the case, deprive[d Appellant] of a valuable right, vitally affect[ed] the
defensive theory, or ma[d]e a case for conviction clearly and significantly more
persuasive.” Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at 172). We
overrule Appellant’s sole issue.
CONCLUSION
Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
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/s/ Mark T. Pittman
Mark T. Pittman
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: May 23, 2019
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