Donna Kay Steggall v. State ( 2018 )

IN THE
TENTH COURT OF APPEALS
No. 10-17-00017-CR
DONNA KAY STEGGALL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2015-2398-C2
MEMORANDUM OPINION
Donna Steggall appeals from convictions for two counts of aggravated sexual
assault of a child and one count of indecency with a child. TEX. PENAL CODE ANN. §§
22.021, 21.11 (West 2011). Steggall complains that the evidence was factually insufficient,
the jury charge's instructions on extraneous offenses were erroneous, the application
paragraph in the jury charge for injury to a child was erroneous because it included the
wrong culpable mental states, the trial court erred by assessing court costs against her
because she is indigent, and the statute authorizing court costs against indigent
defendants is unconstitutional as applied. Because we find no reversible error, we affirm
the judgments of the trial court.
FACTUAL SUFFICIENCY
In her first issue, Steggall complains that this Court should reinstate factual
sufficiency review and find that the evidence was factually insufficient for her to have
committed the offenses for which she was convicted. The Texas Court of Criminal
Appeals, in Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010), abandoned the
factual-sufficiency standard in criminal cases. Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010). This Court has previously considered and rejected the arguments
presented by Steggall. See Wilkins v. State, No. 10-16-00233-CR, 2018 Tex. App. LEXIS
1575 at *8 (Tex. App.—Waco Feb. 28, 2018, no pet.) (mem. op., not designated for
publication). We are not persuaded to consider this argument in this proceeding. We
overrule issue one.
JURY CHARGE LIMITING INSTRUCTIONS
In her second issue, Steggall complains that the two limiting instructions in the
abstract portion of the jury charge were erroneous. Steggall complains that the limiting
instruction regarding extraneous conduct pursuant to Rule of Evidence 404(b) in the jury
charge was erroneous because it did not limit the purposes for which the extraneous
conduct evidence was admitted. Steggall also complains that an instruction regarding
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article 38.37 of the Code of Criminal Procedure was erroneous because it did not limit the
evidence of extraneous offenses to any extraneous acts committed between her and the
child victim but instead referred to "any" extraneous offenses without limitation.
RULE 404(B) INSTRUCTION
The jury charge included an instruction pursuant to Rule of Evidence 404(b) that
stated:
You are instructed that if there is any testimony before you in this case
regarding the Defendant having committed any offenses, if any, other than
the offenses alleged against her in the indictment in this case, you cannot
consider said testimony for any purpose, unless you find and believe
beyond a reasonable doubt that the Defendant committed such other
offenses, if any were committed, and even then you may only consider the
same in determining proof of motive, opportunity, intent, preparation, plan
or knowledge, if any, in connection with the offenses, if any, alleged against
her in the indictment in this case, and for no other purpose.
Steggall complains that the instruction as provided was erroneous because it did
not limit the jury's consideration of extraneous acts relating to drug abuse, her lesbian
relationships and her sexual proclivities and/or fetishes to any specific purpose under
Rule 404(b) but included the entire laundry list of purposes for which such evidence
could be admissible pursuant to Rule 404(b).1
1The limiting instruction included in the jury charge was limited to "any offenses, if any" and included no
reference to a "wrong" or "other act" as described in Rule 404(b). Steggall concedes that the evidence
regarding her relationships and sexual activities were not unlawful acts. Therefore, those acts did not
constitute an "offense" which would be applicable to that evidence and the jury instruction did not apply
to that evidence.
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A trial judge must—without any request or objections from the parties—prepare
a charge that accurately sets out the law applicable to the charged offense. See Delgado v.
State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007); TEX. CODE CRIM. PROC. art. 36.14. The
trial court is not required to include a limiting instruction in the jury charge when no
instruction was requested at the time the evidence was admitted. Delgado, 235 S.W.3d at
254. Steggall did not request a limiting instruction pursuant to Rule 404(b) of the Rules
of Evidence at the time that evidence of possible extraneous offenses was admitted; thus,
this evidence was admissible for all purposes. See id. But Steggall has not cited, nor have
we found, any cases holding that a trial court is prohibited from including a limiting
instruction in such a situation.
Instead, the Court of Criminal Appeals long ago considered and rejected an
argument that the trial court reversibly erred by including a limiting instruction
regarding extraneous offenses in the jury charge over the appellant's objection in Fair v.
State. See Fair v. State, 465 S.W.2d 753, 754 (Tex. Crim. App. 1971). In Fair, the Court
determined that the included instruction, although not required, "was not harmful but
beneficial to the appellant" and it was not reversible error to instruct the jury that it could
consider the extraneous offense for a limited purpose over the defendant's objection. Fair,
465 S.W.2d at 755.
In short, the Court of Criminal Appeals has held that an extraneous-offense
limiting instruction is beneficial to a defendant, and a trial judge does not commit
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reversible error by including such instruction in the jury charge. As such, the inclusion
of this instruction was not reversible error. See Fair, 465 S.W.2d at 755.
ARTICLE 38.37 INSTRUCTION
Steggall also complains that the trial court's instruction pursuant to Article 38.37
was erroneous because it did not limit the jury's consideration of "offenses" committed
by the Defendant to "offenses" committed between Steggall and the victim. The
instruction in the jury charge stated:
You are instructed that if there is any testimony before you in this case
regarding the Defendant having committed any offenses, if any, other than
the offenses alleged against her in the indictment, you cannot consider said
testimony for any purpose unless you find and believe beyond a reasonable
doubt that the Defendant committed such other offenses, if any were
committed, and even then you may only consider the same for its bearing
on relevant matters, including the state of mind of the Defendant and the
alleged victim, S.M., and the previous and subsequent relationship between
the Defendant and the alleged victim, S.M. if any, in connection with the
offenses, if any, alleged against her in the indictment in this case, and for no
other purpose.
This instruction appears to be an amalgamation of Article 38.37, Section 1(b) and
Section 2(b). The instruction as given was limited to other "offenses" allegedly committed
by Steggall; however, Steggall complains only of an extraneous act at a swimming pool
which she concedes likely does not constitute an "offense." We agree that the evidence in
question did not constitute an "offense." Thus, this act was not included in the trial court's
instruction. Because the evidence had been admitted without objection pursuant to
Article 38.37 both during the evidentiary phase of the trial and in the jury charge, the
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surplus instruction did not include the action of which Steggall complains and was
therefore not erroneously included on this basis.
Because we find that the charge was not erroneous pursuant to Steggall's
complaints regarding the jury instructions regarding extraneous offenses, we do not need
to conduct a harm analysis. See, e.g., Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App.
2015). We overrule issue two.
CULPABLE MENTAL STATE
In her third issue, Steggall complains that the trial court erred by failing to
properly instruct the jury regarding the applicable culpable mental state for indecency
with a child. The application paragraph of the jury charge stated that the jury had to find
beyond a reasonable doubt that Steggall "did then and there with the intent to arouse or
gratify the sexual desire of any person, intentionally or knowingly expose the Defendant's
genitals, knowing that S.M., a child younger than seventeen (17) years of age was
present…" Steggall contends that the terms "intentionally or knowingly" were
erroneously included because the requisite intent does not include "knowingly." The
abstract portion of the jury charge defined indecency with a child properly and did not
include the phrase "intentionally or knowingly."
It is undisputed that Steggall did not object to the charge on this basis. Because
there was no objection made to the charge by Steggall, we must first determine whether
the charge as submitted to the jury was erroneous and if so, we must then analyze this
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complaint utilizing the standard of Almanza v. State. Almanza v. State, 686 S.W.2d 157
(Tex. Crim. App. 1985). Under Almanza, unobjected-to jury charge error will not result in
reversal of a conviction in the absence of "egregious harm." 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. Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007).
The State concedes that the jury charge was erroneous on this basis. See Bazanes v.
State, 310 S.W.3d 32, 37 (Tex. App.—Fort Worth 2010, pet. ref'd). We agree that the jury
charge was erroneous. Therefore, we will review the record to determine whether this
error could have caused egregious harm to Steggall, considering the entire jury charge,
the state of the evidence, the argument of counsel, and any other relevant information
revealed by the record of the trial as a whole. See Olivas, 202 S.W.3d at 144; Almanza, 686
S.W.2d at 171.
THE ENTIRE JURY CHARGE
The jury charge was otherwise unexceptional. The abstract portion accurately
stated the substantive law on the offense of indecency with a child—including the specific
intent to arouse or gratify—thus informing the jury of what the State had and did not
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have to prove. The terms were defined in the abstract portion of the charge which was
necessary for the two counts of aggravated sexual assault of a child, which was also
properly defined. Moreover, the charge included the required specific intent to arouse
or gratify in the application portion, along with the erroneous "intentionally and
knowingly" language. The charge also correctly addressed the indictment, statements of
the court and of counsel, the presumption of innocence, the credibility of witnesses and
weight to be given their testimony, and the burden of proof, and we have previously
determined that the instructions regarding extraneous offenses were not improperly
given. Consequently, within the context of the entire jury charge, the erroneous
application paragraph appears less harmful. The jury charge as a whole slightly lessens
any potential harm suffered by Steggall.
THE STATE OF THE EVIDENCE
Regarding the state of the evidence, the primary contested issue at trial was
whether Steggall committed the conduct at all. Whether or not Steggall committed the
offense "with the intent to arouse or gratify" was not an issue. We find that the state of
the evidence weighs against a finding of egregious harm to Steggall.
ARGUMENTS OF COUNSEL
The closing arguments by the State and Steggall were focused on whether or not
the offenses were committed at all, not on the intent with which the indecency charge
was committed. We find nothing in the closing arguments by either the State or Steggall
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that indicates that she was egregiously harmed by the error, and in her brief, she
acknowledges that this factor weighs against a finding of egregious harm.
OTHER INFORMATION IN THE TRIAL AS A WHOLE
After a review of the record, we note that each count in the indictment tracks the
same objectionable language as the charge; however, Steggall did not challenge the
indictment. Any potential error in the indictment was therefore, waived. See TEX. CODE
CRIM. PROC. ANN. art. 1.14(b) (West 2005). Steggall concedes that there is nothing in the
record that suggests that she suffered egregious harm from the erroneous charge.
NO EGREGIOUS HARM
Under the stringent standards necessary to show egregious harm, we conclude
that this error did not affect the very basis of Steggall's conviction for indecency with a
child; thus, egregious harm has not been shown. Steggall's third issue is overruled.
COURT COSTS
In her fourth and fifth issues, Steggall asserts that the trial court erred in assessing
court costs against her. In her fourth issue, Steggall argues that she should not have to
pay court costs at all because she is indigent. In her fifth issue, Steggall argues that the
statutes authorizing the assessment of court costs against indigent criminal defendants
are unconstitutional as applied to her and violate her right to equal protection because
court costs are not assessed against indigent civil parties.
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This Court has overruled substantially-similar arguments pertaining to the
imposition of court costs for indigent criminal defendants. See, e.g., Martinez v. State, 507
S.W.3d. 914, 916-18 (Tex. App.—Waco 2016, no pet.). In light of our decision in Martinez,
we are not persuaded by Steggall's arguments regarding court costs. See id. Accordingly,
we overrule Steggall's fourth and fifth issues.
CONCLUSION
Having found no reversible error, we affirm the judgments of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed August 8, 2018
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