Edward James Dwyer Jr. v. State

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-15-00805-CR

Edward James DWYER, Jr.,
Appellant

v.

The STATE of Texas,
Appellee

From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. B14-568
Honorable M. Rex Emerson, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Sitting: Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice

Delivered and Filed: July 26, 2017

AFFIRMED

A jury convicted Edward James Dwyer, Jr. for continuous sexual abuse of a child and

aggravated sexual assault of a child. On appeal, Dwyer argues there is legally insufficient evidence

to support his conviction for continuous sexual abuse of a child; he was unable to intelligently

exercise his peremptory strikes because he and his trial counsel were unable to view the venire

panel while making peremptory strikes; and the trial court erroneously instructed the jury to

disregard the dates alleged in the indictment, resulting in two convictions for the same offense in

violation of the Double Jeopardy Clause. We affirm the trial court’s judgment.
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PROCEDURAL BACKGROUND

A grand jury indicted Dwyer for the continuous sexual abuse of C.D., who is Dwyer’s

daughter. The indictment alleged Dwyer intentionally or knowingly touched C.D.’s genitals with

his hand at least twice between January 15, 2011, and June 6, 2012. The grand jury also indicted

Dwyer for aggravated sexual assault of C.D. The indictment alleged Dwyer intentionally and

knowingly caused his finger to penetrate C.D.’s sexual organ on or about June 12, 2012. The

indictment further alleged C.D. was under the age of fourteen at the time of the alleged offenses.

Dwyer pled not guilty, and the case proceeded to a jury trial.

The State presented the expert witness testimony of Carol Twiss, who testified about

typical patterns of children’s disclosure of sexual abuse; the testimony of Darin Trahan, an

investigator with the Kerrville Police Department who interviewed Dwyer about C.D.’s outcry;

and the testimony of C.D. The trial court also admitted a video recording of Dwyer’s interview

with Trahan. Dwyer testified in his defense. After closing arguments, the jury found Dwyer guilty

of both offenses as charged in the indictment, and the trial court assessed Dwyer’s punishment.

The trial court imposed Dwyer’s sentences, and Dwyer filed a timely notice of appeal.

LEGAL SUFFICIENCY

Dwyer argues there is legally insufficient evidence that he “touched C.D. with the intent to

arouse or gratify his sexual desire on more than one occasion over a period greater than thirty

days.” In reviewing the legal sufficiency of the evidence, we ask whether “any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979); accord Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.

2009). We review the evidence “in the light most favorable to the verdict.” Merritt v. State, 368

S.W.3d 516, 525 (Tex. Crim. App. 2012). “Our role on appeal is restricted to guarding against the

rare occurrence when a factfinder does not act rationally,” and we must “defer to the responsibility
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of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010) (quotation marks and citations omitted).

The essential elements of continuous sexual assault of a child, as alleged in the indictment,

are set out in section 21.02(b) of the Texas Penal Code. TEX. PENAL CODE ANN. § 21.02(b) (West

Supp. 2016). Section 21.02(b) provides:

A person commits an offense if: (1) during a period that is 30 or more days in
duration, the person commits two or more acts of sexual abuse, regardless of
whether the acts of sexual abuse are committed against one or more victims; and
(2) at the time of the commission of each of the acts of sexual abuse, the actor is 17
years of age or older and the victim is a child younger than 14 years of age.

Id. (formatting modified). An “act of sexual abuse” includes touching any part of a child’s genitals

“with intent to arouse or gratify the sexual desire of any person.” Id. §§ 21.01(2), 21.02(c)(2),

21.11(a)(1) (West 2011 & Supp. 2016). Dwyer challenges only the legal sufficiency of the

evidence that he touched C.D.’s genitals “with the intent to arouse or gratify his sexual desire on

more than one occasion over a period greater than thirty days.”

C.D. testified June 6, 2012, was a significant day in her life because her mother died

suddenly that day. She testified Dwyer sexually abused her before her mother passed away. C.D.

explained, “[Dwyer] would touch [her] inappropriately, obviously, and it would start off seeming

like it was innocent and then escalate.” She clarified, “[Dwyer] would touch [her] vagina in

different ways each time” with “[h]is hands.”

C.D. testified Dwyer would touch her “typically when [she] was asleep” and “[she] would

wake up from him touching [her].” C.D. testified she believed Dwyer’s touching was

“[d]eliberate.” She stated the touching incidents occurred more than twice and “[s]ometimes”

multiple times a week “[s]ince January of 2011.” She also stated that once while touching her,

“[Dwyer] said, ‘Do you want what your body’s telling me you want?’” C.D. described Dwyer’s
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touching of her vagina as “[r]ubbing” for “[l]onger” than a couple of seconds and “[s]ometimes”

more than a minute. C.D. testified she did not know whether Dwyer became aroused when he

touched her.

Dwyer testified he had no memory of some of the incidents about which C.D. testified, but

“a typical situation” was when he and C.D. were watching television and C.D. would “plop her

legs up into [his] lap . . . and [he]’d be sitting there rubbing her legs.” Dwyer stated, “There were

a couple of times that [he] got close to her vagina, but it was inadvertent,” and he would stop

“sliding [his] hand up and down her leg” when “[he] would feel [his] fingers brush against fabric.” 1

Dwyer testified he believed C.D. was generally truthful and was “not aware of any time

that she has lied,” but C.D. was “[p]robably” unhappy that he would not allow her to leave home

and live elsewhere. He also testified C.D. had been untruthful with the jury, but she was telling the

truth when she said he gave her multiple massages while they were on the couch.

Dwyer stated he was aroused “[o]nce or twice” when he was giving C.D. massages, but

denied asking her, “Do you want what your body’s telling me you want?” He also stated that, at

times, he could smell her when she was “through with her period” and it would arouse him on rare

occasions, but not fully. Dwyer testified that “within a day or so” after his interview with

Investigator Trahan, he left Texas but was extradited back to the state.

During his interview with Trahan, Dwyer initially stated he came close to touching C.D.’s

private part a couple of times and “[his] fingers probably grazed that area,” but “[he could] not

recall a time that has ever happened.” Dwyer guessed it was possible that once while giving C.D.

a back massage, his fingertip went underneath C.D.’s panties and he possibly touched C.D.’s

vagina one or two times. Dwyer stated he “maybe” was “semi” aroused by massaging C.D. He

1
Dwyer stated during his interview with Investigator Trahan that when he used the word “fabric,” he was referring
specifically to C.D.’s underwear.

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described another incident when C.D. put her legs on him, and he rubbed her legs until he felt

C.D.’s panties. He stated he “grazed her panty covered vulva a few times,” but only the “outer

fold,” and he agreed with Trahan that he did not “go inside.” Toward the end of the interview,

Dwyer admitted C.D. was a “temptation” that he tried, but failed, to “fight.” He also admitted he

deliberately touched C.D.’s vagina “to see what she would do” and “[he] was kind of curious to

see just how far she would let somebody go,” but stated it was “mostly to know if [he] had anything

to worry about . . . as far as her being sexually active.”

In his brief, Dwyer acknowledges there is direct evidence that, on one occasion, he was

aroused by touching C.D.’s genitals. He argues, however, that C.D. equivocated in her testimony

about whether she thought Dwyer was aroused on other occasions when he was touching her.

Dwyer further argues C.D. merely testified to a vague pattern of abuse. However, Dwyer stated

during his interview and testified at trial he was occasionally aroused by C.D. and aroused when

he massaged her. Dwyer testified he got aroused when giving C.D. massages “[o]nce or twice.”

He also admitted during his interview that he deliberately touched C.D.’s vagina. C.D. testified

Dwyer rubbed her vagina on multiple occasions, sometimes for more than a minute. A rational

jury could have inferred from the evidence that Dwyer deliberately touched part of C.D.’s genitals

on more than one occasion to arouse or gratify his sexual desires. C.D.’s testimony shows these

“touching” incidents started as early as January 2011, continued through June 6, 2012, and

occurred on numerous occasions during some weeks. We therefore hold a rational jury could have

found Dwyer had engaged in an act of sexual abuse with the intent to arouse or gratify his sexual

desire on more than one occasion over a period of greater than thirty days. See Laster, 275 S.W.3d

at 517.

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INABILITY TO VIEW THE VENIRE PANEL WHILE EXERCISING PEREMPTORY STRIKES

Dwyer argues the trial court erred by excusing the venire panel during the time the parties

exercised their peremptory strikes. The day before trial, Dwyer filed a “motion to view the entire

juror panel while making strikes.” Dwyer requested that the trial court order all venire members

“to remain in their assigned/numbered, seats/spaces, while [his] attorney is exercising or making

his juror strikes.” He argued he was entitled under article 1, section 10 of the Texas Constitution,

and the Sixth Amendment of the U.S. Constitution, to view the venire panel while making his

strikes.

Before voir dire, Dwyer presented his motion to the trial court and reiterated the argument

in his motion. Dwyer’s counsel explained:

if the people aren’t in the courtroom -- [Dwyer] might recognize somebody at a
later point and if they’re not in the courtroom, he can’t recognize them to talk to
me and advise me to be able to make a strike or give me an opinion about his strike.

Counsel also asserted he cannot make the decision of who to strike “unless the people are here

sitting in their numbered spot so [counsel] know[s] who they are.” The trial court denied the

motion.

The parties conducted general voir dire and individual voir dire followed at the bench. At

the conclusion of individual voir dire, the trial court gave the parties twenty minutes to make their

peremptory strikes. Dwyer re-urged his motion and requested that the trial court order the venire

panel to remain in the courtroom so counsel could observe them while deciding who to strike. The

trial court again denied the motion.

On appeal, Dwyer argues the trial court erred by denying his request because he and

counsel were “unable to assess [the venire members’] body language or make side by side visual

comparisons while making his strikes.” He contends he lacked “the benefit of a contemporaneous

visual examination of the venire panel as it was winnowed into the jury.” He also contends “[h]e
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was unable to compare the panelists’ appearance, demeanor, and reaction to the strikes.” Dwyer

states the trial court’s denial of his motion “robbed [him] of crucial data concerning the venire

panel.”

“Trial courts have broad discretion over the jury selection process in Texas.” Rios v. State,

122 S.W.3d 194, 197 (Tex. Crim. App. 2003). We will not reverse a trial court’s judgment unless

the trial court abuses its discretion. Clark v. State, 608 S.W.2d 667, 669 (Tex. Crim. App. [Panel

Op.] 1980). A trial court does not abuse its discretion unless its ruling is arbitrary, unreasonable,

or without reference to any guiding rules and principles. State v. Hill, 499 S.W.3d 853, 865 (Tex.

Crim. App. 2016).

A defendant has the right “to intelligently exercise his peremptory strikes.” Gonzales v.

State, 2 S.W.3d 600, 602-03 (Tex. App.—Texarkana 1999, pet. ref’d). This right “requires that

counsel be permitted to question the members of the jury panel.” Id. at 603. Generally, a trial court

abuses its discretion in this context when it denies the defendant’s request “to discover a juror’s

views on an issue applicable to the case.” See id. Moreover, “[i]t is within the trial court’s

discretion to prohibit improper questions and to place reasonable time limits on voir dire.” Rios,

122 S.W.3d at 197.

The record shows Dwyer and his counsel were present for the entire voir dire, including

general voir dire and individual voir dire at the bench. Dwyer does not contend that he was unable

to ask the venire panel any particular question or that the trial court gave him insufficient time for

either general voir dire or individual voir dire. Dwyer also does not complain he was unable to

view the venire members’ reactions to questioning during voir dire. We therefore presume Dwyer

had sufficient time to conduct voir dire and observe the jurors’ reactions to questioning in order to

intelligently exercise his peremptory strikes, at least until the time the trial court gave the parties

twenty minutes to decide who to peremptorily strike. See id.; see also Light v. State, 15 S.W.3d
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104, 107 (Tex. Crim. App. 2000) (explaining the presumption of regularity requires us to “indulge

every presumption” in favor of the regularity of proceedings in a trial court). We must therefore

address whether the trial court denied Dwyer’s right to intelligently exercise his peremptory strikes

by excusing the venire panel while Dwyer and his counsel decided who to strike.

Dwyer suggests (1) it was impossible for him to confer with trial counsel about who to

strike without being able to see the entire venire panel while making strikes; and (2) he is entitled

to view the venire members’ reactions to the parties’ decisions about who to strike. The record

does not show Dwyer or his trial counsel were unable to take notes or use other memory aids

during voir dire. The record also does not show Dwyer and his counsel were unable to confer about

venire members’ verbal responses or nonverbal reactions during either voir dire or the twenty

minutes the trial court gave the parties to make their strikes. Dwyer argues he should have been

afforded an opportunity to observe the venire panel’s reactions to his peremptory strikes, but a

venire member’s reaction to the parties’ exercise of peremptory strikes is not a “view[] on an issue

applicable to the case.” Cf. Gonzales, 2 S.W.3d at 603. We hold the trial court did not abuse its

discretion by denying Dwyer’s request to require the members of the venire panel to remain in

their assigned seats while he made his peremptory strikes. 2

DOUBLE JEOPARDY

Dwyer argues “[t]he jury was improperly charged that it was not bound by the dates

described in the indictment, [which] permitted them to base [Dwyer’s] convictions for both

aggravated sexual assault and continuous sexual abuse based on a single instance of digital

penetration and placed [him] in double jeopardy.” During the charge conference, Dwyer did not

object to the jury charge or raise any issue of double jeopardy. Because Dwyer’s double jeopardy

2
Dwyer also complains the trial court erred by failing to state why it denied his motion, but he does not cite to any
authority suggesting the trial court is required to state the reasons for its rulings.

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claims were not raised at or before the time the charge was submitted to the jury, we may not

reverse the trial court’s judgment unless the double jeopardy violation is apparent on the face of

the record. See Gonzalez v. State, 8 S.W.3d 640, 642-45 (Tex. Crim. App. 2000).

“The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the

Fourteenth Amendment, protects an accused from being punished more than once for the same

offense in a single prosecution.” Carmichael v. State, 505 S.W.3d 95, 100 (Tex. App.—San

Antonio 2016, pet. ref’d). In this context, two offenses are “the same offense” if one is a lesser-

included offense of the other, or if the Legislature has made it clear that only one punishment is

intended for the two offenses. Id. Whether two offenses are the “same” is a matter of legislative

intent. Id.

Aggravated sexual assault “is a lesser-included offense of continuous sexual abuse, and is

considered a ‘predicate’ offense under the continuous sexual abuse statute.” See id.; see also TEX.

PENAL CODE ANN. § 21.02(e). Section 21.02(e) of the Texas Penal Code provides:

A defendant may not be convicted in the same criminal action of
[aggravated sexual assault of a child] the victim of which is the same victim as a
victim of [alleged continuous sexual abuse of a child] unless [aggravated sexual
assault of a child]:
(1) is charged in the alternative;
(2) occurred outside the period in which the [alleged continuous sexual
abuse of a child] was committed; or
(3) is considered by the trier of fact to be a lesser included offense of
[continuous sexual abuse of a child].

TEX. PENAL CODE ANN. § 21.02(e). “[T]he Legislature did not intend to allow a defendant

convicted of continuous sexual abuse to be also convicted for aggravated sexual assault of the

same child if the aggravated sexual assault at issue and the continuous sexual assault both occurred

within the same time periods.” Carmichael, 505 S.W.3d at 100-01. Conversely, the Legislature

did not intend for continuous sexual abuse of a child and aggravated sexual assault of a child to be

the “same offense” if the alleged aggravated sexual assault “occurred outside of the period in which
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the [alleged continuous sexual abuse of a child] was committed.” See § 21.02(e)(2); cf.

Carmichael, 505 S.W.3d at 100-01.

The indictment alleged Dwyer committed two offenses: continuous sexual abuse of a child

and aggravated sexual assault of a child. In Count I, the indictment alleged:

On or about the 15th day of January, 2011, through June 6, 2012, over a period
that was 30 days or more in duration, [Dwyer] committed two or more acts of sexual
abuse against C.D., a child under the age of 14 years and not the wife of [Dwyer],
in Kerr County, Texas, said acts of sexual abuse including violations of one or more
of the following penal laws, namely:

A. Indecency with a Child by Contact: With the intent to arouse
or gratify the sexual desire of [Dwyer], intentionally or knowingly
engaged in sexual contact with C.D. by touching the genitals of C.D.
with his hand or a portion thereof

B. Indecency with a Child by Contact: With the intent to arouse
or gratify the sexual desire of [Dwyer], intentionally or knowingly
engaged in sexual contact with C.D. by touching the genitals of C.D.
with his hand or a portion thereof

(formatting modified). Count II of the indictment alleged:

On or about June 12, 2012, and before the presentment of this indictment, in
said county and state, did intentionally and knowingly sexually assault C.D. by
causing the finger of [Dwyer] to penetrate the female sex organ of C.D., a child
younger than 14 years of age and not the spouse of [Dwyer].

(formatting modified). 3 The date of June 12, 2012, is outside the period of January 15, 2011, to

June 6, 2012. Thus, the alleged aggravated sexual assault “occurred outside of the period in which

the [alleged continuous sexual abuse of a child] was committed.” See § 21.02(e); cf. Carmichael,

505 S.W.3d at 100-01. Consequently, a double jeopardy violation is not apparent on the face of

this record as required for reversal of Dwyer’s conviction. See Gonzalez, 8 S.W.3d at 642-45.

3
The jury charge tracked the allegations in the indictment, and the jury found Dwyer guilty of the offenses as charged
in the indictment.

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CHARGE ERROR

Dwyer argues, “The [jury] charge incorrectly informed the jury that it should disregard the

date range alleged for count I, continuous sexual abuse.” He argues “this error substantially

bolstered the case against [him] by permitting the jury to consider count II of the indictment as a

predicate offense for count I.” The charge instructed the jury:

You are instructed that members of the jury are not required to agree
unanimously on which specific acts of sexual abuse, if any, were committed by the
defendant in Count One, or the exact date when those acts were committed, if any.
The jury must agree unanimously that the defendant, during a period that was 30 or
more days in duration, committed two or more acts of sexual abuse as that term has
been previously defined.
....

You are further charged that the State is not required to prove the exact dates
alleged in the indictment, but may prove the offense, if any, to have been committed
at any time prior to presentment, so long as the offense if any, occurred within ten
years of the date of presentment of the indictment.

Dwyer acknowledges these instructions are “unobjectionable,” 4 but the trial court erred by

omitting an instruction that the jury could not convict him for both offenses unless the aggravated

sexual assault of a child occurred outside the period in which the alleged continuous sexual abuse

of a child was committed.

“A trial court must instruct the jury on the law applicable to the case.” State v. Ambrose,

457 S.W.3d 154, 159 (Tex. App.—San Antonio 2015), aff’d, 487 S.W.3d 587 (Tex. Crim. App.

2016). But when, as here, the appellant failed to object to the jury charge at trial, we must affirm

the trial court’s judgment unless we determine the appellant suffered egregious harm. Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). The egregious harm standard is difficult to

meet. Ambrose, 457 S.W.3d at 160. Egregious harm “affects the very basis of the case, deprives

4
“It was not incorrect to instruct the jurors that in a prosecution for continuous sexual abuse of a young child, the
State is not bound to prove the exact dates alleged in the indictment.” See Martin v. State, 335 S.W.3d 867, 874 (Tex.
App.—Austin 2011, pet. ref'd).

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the defendant of a valuable right, or vitally affects a defensive theory.” Id. In assessing the harm

caused by failing to properly instruct the jury, we consider “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.

A. The Entire Jury Charge

The jury charge instructed the jury that Dwyer was charged with two offenses. The first

offense was continuous sexual abuse of a child “alleged to have been committed on or about the

15th day of January, 2011, through June 6, 2012.” The second was “aggravated sexual assault of

a child, alleged to have been committed on or about the 12th day of June, 2012.” The next two

paragraphs contained in the charge explained the two offenses:

1.
A person commits an offense of continuous sexual abuse of [a] young child
or children if, during a period that is 30 days or more in duration, the person
commits two or more acts of sexual abuse, regardless of whether the acts of sexual
abuse are committed against one or more victims and, at the time of the commission
of each of the acts of sexual abuse, the person was 17 years of age or older and the
victim is a child younger than 14 years of age.

2.
Our law provides that a person commits the offense of aggravated sexual
assault of a child if the person intentionally or knowingly causes the penetration of
the anus or female sexual organ of a child by any means and the victim is younger
than 14 years of age.

The subsequent paragraphs defined “child” and “actor,” as well as “act of sexual abuse.” The

charge defined “act of sexual abuse” as “any act that is a violation of indecency with a child if

committed in a manner other than by touching, including touching through clothing, the breast of

a child.” The charge then instructed the jury it was “not required to agree unanimously on . . . the

exact date when th[e] [alleged] acts were committed.” The charge also defined the culpable mental

states for the offenses.
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The next two paragraphs contained in the charge were the application paragraphs:

4.
Now if you find from the evidence beyond a reasonable doubt that on or
about the 15th day of January, 2011 through June 6, 2012, over a period that was
30 days or more in duration, in Kerr County, Texas . . . [Dwyer] did then and there
commit two or more acts of sexual abuse against C.D., in Kerr County, Texas, said
acts of sexual abuse including violations of one or more of the following penal laws,
namely: indecency with a child by contact: with the intent to arouse or gratify the
sexual desire of [Dwyer], intentionally or knowingly engage in sexual contact with
C.D. by touching the genitals of C.D. with his hand or a portion thereof, a child
who was then and there younger than 14 years of age, then you will find the
defendant “guilty” of continuous sexual abuse of a young child or children . . . as
charged in the indictment in Count One.
Unless you so find beyond a reasonable doubt, or if you have a reasonable
doubt thereof, you will find the defendant “not guilty” of continuous sexual abuse
of [a] young child or children, as charged in the indictment in Count One.

5.
Now, if you find from the evidence beyond a reasonable doubt that on or
about the 12th day of June, 2012, in KERR County, Texas . . . [Dwyer], did
intentionally and knowingly sexually assault C.D. by causing [Dwyer]’s finger to
penetrate the female sexual organ of C.D., and C.D. was a child under the age of
14 and not the spouse of [Dwyer], then you will find the defendant “guilty” of
aggravated sexual assault of a child, as charged in the indictment in Count Two.
Unless you so find from the evidence beyond a reasonable doubt, or if you
have a reasonable doubt thereof you will find the defendant “not guilty” of
aggravated sexual assault of a child, as charged in the indictment in Count Two.

The charge further instructed the jury on the presumption of innocence, the State’s burden of proof,

the differences between direct and circumstantial evidence, impermissible inferences, and

impermissible juror conduct. The charge also included instructions that “the State is not required

to prove the exact dates alleged in the indictment, but may prove the offense, if any, to have been

committed at any time prior to presentment, so long as the offense if any, occurred within ten years

of the date of presentment of the indictment.”

Dwyer characterizes the instructions about the exact dates of the offenses as instructions to

entirely “disregard” the alleged offense dates. We disagree. The charge does not contain an

instruction suggesting the jury may entirely disregard the alleged dates of the offenses. The charge

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instructs the jury that the State does not need to prove the offenses took place on any given “exact

date” or “dates.” However, the charge described the “continuous sexual abuse of a child” offense

as including indecency with a child by contact, specifically “by touching the genitals of C.D. with

his hand or a portion thereof.” The charge also described the “aggravated sexual assault of a child”

offense as including intentionally or knowingly “causing [Dwyer’s] finger to penetrate the female

sex organ of C.D.” In light of the charge’s instructions that the State need not prove the exact dates

on which the alleged offenses occurred, the charge as a whole raises the theoretical possibility that

the jury relied on evidence of the “aggravated sexual assault of a child” offense to find Dwyer

guilty of the “continuous sexual abuse of a child” offense in violation of Dwyer’s double jeopardy

rights.

B. The State of the Evidence

As described in our analysis of Dwyer’s legal sufficiency challenge, C.D. testified Dwyer

touched or rubbed her genitals on multiple occasions before June 6, 2012. During his interview

with Investigator Trahan, Dwyer stated he deliberately touched C.D.’s vagina. Dwyer testified at

trial, however, the “times that [he] got close to [C.D.’s] vagina” were “inadvertent.” In addition to

this evidence, C.D. testified about a separate incident when she woke up and discovered Dwyer

had his fingertips inside of her vagina. She testified this incident occurred less than a week after

her mother died. C.D. testified she specifically recalled the timing of this incident because it was

the first night she had been able to sleep after her mother died. Dwyer denied putting any part of

his fingers inside C.D.’s vagina.

C. Arguments of Counsel & Other Parts of the Record

During general voir dire, the prosecution informed the venire panel that “specifics,”

including specific dates, “are not required,” and gave examples of how the jury’s disagreements

about the specific dates of occurrences were immaterial so long as the jury were to agree that
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sexual abuse “occurred two or more times.” The prosecution stated that depending upon the child’s

age, the child “may not be calendar literate.” The prosecution also told the venire panel,

“Sometimes they can say it was before or after an event, but as far as knowing the day, the month

and the year, they can’t be specific, so it’s not required.”

During the State’s opening statement, the prosecution explained to the jury it selected June

6, 2012 as the cut-off date for the continuous sexual abuse charge because June 6, 2012, “was an

easy day for [C.D.] to remember because that’s the day her mother passed away, so she can relate

to things happening before that date and after that date.” The prosecution further stated C.D. would

testify that within a week of her mother dying, Dwyer inserted his fingertips inside her vagina

while she was sleeping.

During closing arguments, the prosecution did not emphasize that the State was not

required to prove specific dates. The prosecution also did not tell the jury it could rely upon the

incident after C.D.’s mother died to convict Dwyer of both offenses. The prosecution focused on

the evidence supporting the alleged offenses and the credibility of the witnesses. Dwyer’s counsel

asked the jury to focus on the evidence of arousal or gratification of sexual desire. Dwyer’s counsel

noted, “We’re not arguing about whether anything happened or didn’t happen on the 12th or

whether it happened or didn’t happen in Kerr County. We’re not arguing about that.” He also stated

the State had the burden to prove a minimum of two acts occurred over a period of thirty days.

D. Analysis

The jury charge lacked an instruction that the jury may not convict Dwyer of both

aggravated sexual assault of C.D. and continuous sexual assault of C.D. unless the aggravated

sexual assault occurred outside the period in which the continuous sexual abuse of C.D. was

committed. The omission of this instruction raised a theoretical possibility that the jury based both

of its verdicts on Dwyer’s penetration of C.D.’s vagina with his finger after C.D.’s mother died,
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and violated Dwyer’s double jeopardy rights. But “[a]n egregious harm determination must be

based on a finding of actual rather than theoretical harm.” Cosio v. State, 353 S.W.3d 766, 777

(Tex. Crim. App. 2011).

Although the State informed the venire panel during voir dire that the State was not

required to prove specific dates, the State drew the jury’s attention to the importance of June 6,

2012, during its opening statement. Consistent with the State’s opening statement, C.D.

specifically testified she remembered the incident when Dwyer put his fingertips inside her vagina

because it was the first night she had slept since June 6, 2012, the date on which her mother died

suddenly. She testified that before June 6, 2012, Dwyer touched her vagina more than twice and

there were some weeks that Dwyer touched her vagina on multiple occasions. She also testified

that after June 6, 2012, Dwyer put her fingertips inside her vagina while she was sleeping.

During closing arguments, Dwyer’s counsel expressly stated he was not contesting the

evidence regarding the dates. Instead, Dwyer’s defensive theory was based on the absence of direct

evidence that he was actually aroused more than once during the thirty-day period. However,

Dwyer made numerous statements during his interview that he was aroused by C.D. See Martin,

335 S.W.3d at 876 (considering the appellant’s defensive theory in an egregious harm analysis).

For the jury to have based both convictions on Dwyer’s penetration of C.D.’s vagina with

his fingers after C.D.’s mother died, the jury must have (1) found C.D.’s testimony about the

penetration incident more credible than Dwyer’s testimony denying the incident had occurred; (2)

believed C.D.’s testimony that Dwyer touched or rubbed her vagina on one occasion before her

mother died; and (3) disbelieved C.D.’s uncontroverted testimony that Dwyer touched or rubbed

her vagina more than once before her mother died. The evidence shows only one articulated reason

why C.D. might have lied; according to Dwyer, C.D. was “probably” upset with him that he would

not let her leave his home and live elsewhere. But if the jury accepted Dwyer’s explanation that
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C.D. was lying because she was angry at him, the jury likely would not have found C.D.’s

testimony more credible than Dwyer’s testimony. See id. (considering the jury’s likely view of the

evidence and resolution of credibility issues in an egregious harm analysis). Furthermore, Dwyer

testified C.D. was generally truthful and he could not recall a time when she had lied to him.

Dwyer, however, gave conflicting statements about his conduct, and during his interview with

Investigator Trahan, he stated he deliberately touched C.D.’s vagina and was aroused by C.D. We

conclude that even if the jury charge erroneously lacked a necessary instruction, the record as a

whole shows Dwyer was not egregiously harmed by the omission. See Almanza, 686 S.W.2d at

171.

CONCLUSION

We affirm the trial court’s judgment.

Luz Elena D. Chapa, Justice

PUBLISH

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