Carlos Bernard Lane v. the State of Texas ( 2022 )

Affirmed and Opinion Filed November 4, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-01037-CR
CARLOS BERNARD LANE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F18-76576-Y
MEMORANDUM OPINION
Before Justices Myers, Pedersen, III, and Garcia
Opinion by Justice Pedersen, III
A jury found appellant Carlos Bernard Lane guilty of aggravated sexual
assault of a child, and the trial court assessed his punishment at six years’
confinement in the Institutional Division of the Texas Department of Criminal
Justice plus a $1500 fine. In this Court, appellant challenges the sufficiency of the
evidence to support the jury’s verdict and the jurisdiction of the trial court to hear
his case; he also complains of errors in the court’s charge to the jury. We affirm.
Background
A.S. is the complaining witness in this case. Her mother (“Mother”) testified
at trial as A.S.’s outcry witness. Mother explained that appellant is her father and
that he had been absent from her life for a number of years when she was young.
Mother and appellant reconnected when both were living in Dallas; A.S. was seven
or eight years old at that time. Appellant would often watch A.S. for Mother while
Mother worked.
Mother testified that A.S. wanted to stay over at appellant’s home one night
in October 2018. That was the first time A.S. had spent the night unsupervised with
her grandfather. After appellant dropped A.S. off the next day, she told Mother that
“Papa touched me.” A.S. then described a series of events involving appellant. He
told her she smelled musty, and then he rubbed deodorant under her arms and on her
breasts. He later told her to take a shower, and while she was in the shower, he asked
her if she knew what her virginity was; while she was in the shower, he rubbed her
stomach, her legs, and in between her legs. After the shower, appellant gave A.S. a
big shirt and boxers to wear, and he washed her clothes. Although he knew A.S. was
afraid of the dark, he turned off all the lights and television; she was afraid, so she
went into appellant’s room and initially sat in a chair there. After appellant insisted,
A.S. got in his bed. He removed her underwear and his underwear, touched her on
her stomach and her neck, kissed her, and licked her breasts and between her legs.
Mother called the police, and she and A.S. went to Children’s Hospital, where A.S.
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underwent a physical examination. Then they went to the Dallas Children’s
Advocacy Center, where A.S. was forensically interviewed.
A.S. testified that she was nine years old at the time of the events at issue. She
stated that she and Mother both wanted her to stay at appellant’s that night. She liked
her grandfather and had not had any problem with him. She described watching
television in the living room when they arrived at his apartment and getting appellant
a beer at his request. A.S. testified that she took a bath that evening, and while she
was in the bathtub appellant came into the room and put his hand on her vagina. This
scared her, and she told appellant, “My momma said don’t touch me there.”
Afterwards, she went with appellant to his room because all the lights were off, and
she was afraid of the dark. She played a piano there and watched cartoons on the
television while lying on a chest at the foot of the bed. After some time appellant
told her to get on the bed, and she did. Then appellant started to touch her on her
arms and her stomach. He lifted up her shirt and took off the boxers she had put on
after her bath. Then he touched her legs, “put his mouth in [her] private area,” and
was licking her inside her vagina. She testified it felt “[w]eird and nasty,” and she
was scared. She smelled alcohol on appellant’s breath. Appellant tried to make A.S.
put her hand on his penis; while appellant held her hand she touched his penis, and
it was hard. She didn’t say anything to appellant while this was happening because
she was scared. He told her not to tell Mother what happened. He washed the clothes
that she had worn to his apartment, and she wore them back home the next day.
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On cross examination, A.S. admitted she had looked through appellant’s
drawers trying to find a cell phone; she said that appellant was “strict” and “mean in
his way.” The testimony on this subject is less than clear, but A.S. did not say that
she was punished for her conduct.
The defense was permitted to ask A.S. about an incident that she described to
the district attorney—for the first time—when preparing for trial: she told the
prosecutor that, when she was seven, a cousin had put his penis on her basketball
shorts and wanted her to touch it. During her initial forensic interview in 2018, A.S.
was asked whether anything like what had happened with appellant had happened to
her before; she said no. A.S. initially agreed with defense counsel that the act she
described involving her cousin was “very similar to the allegations that [she was]
making against Papa.” But on redirect, she testified specifically that no one had ever
licked her vagina before, and that had been her understanding of the question she
was asked in 2018.
Suzanne Dakil, M.D., the medical director of the Referral and Evaluation of
At-Risk Children Clinic at Children’s Medical Center, testified as an expert on child
abuse. She described the examination A.S. underwent at Children’s Hospital, and
she explained that the results were normal. Specifically, she testified that no DNA
evidence was discovered during that exam.
Dallas Police Department Detective Cory Foreman also testified at trial.
Foreman watched A.S.’s forensic interview, and he interviewed appellant after
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appellant was arrested. In that interview, appellant repeatedly denied that he had
done anything to A.S., but he told the detective he had consumed a fifteen-pack of
beer and some tequila that night. Foreman testified that, based on his many years of
experience, he believed A.S. and not appellant.
The jury found appellant guilty, and the trial court assessed his punishment at
six years’ confinement plus a $1500 fine. This appeal followed.
Sufficiency of the Evidence
In his first issue, appellant argues that the evidence is insufficient to prove that
appellant committed the offense of sexual assault of a child. Appellant’s indictment
charged that he did “intentionally and knowingly cause the sexual organ of A.S., a
child, to contact and penetrate the mouth of defendant, and at the time of the offense,
the child was younger than fourteen years of age.” See TEX. PENAL CODE ANN.
§ 22.021(a)(2)(B). Appellant argues that the only evidence probative of that indicted
offense is A.S.’s testimony, and he contends that this evidence is “so weak that it
creates only a suspicion of wrongdoing.”
We review appellant’s challenge by examining the evidence in the light most
favorable to the verdict to determine whether any rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319 (1979). The jury is the sole judge of the credibility and
weight to attach to witness testimony. Wise v. State, 364 S.W.3d 900, 903 (Tex.
Crim. App. 2012). Furthermore, the testimony of a child victim is sufficient by itself
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to support a conviction for sexual assault of a child. TEX. CODE CRIM. PROC. ANN.
art. 38.07(a).
A.S. testified that appellant penetrated her vagina with his tongue. Appellant’s
defense was that no offense had occurred. The jury heard him deny the offense in a
recording of Detective Foreman’s interrogation, and defense counsel argued in
closing that the evidence—or lack thereof—supported his denial. Thus, the
fundamental issue for the jury was credibility. A.S.’s testimony was consistent with
her outcry to Mother immediately after the event. Foreman, who observed A.S.’s
forensic interview the day of her outcry, testified that she did not look coached or
appear to have made up her story; instead, she gave “sensory details and effects” as
she described what had happened. Considering the evidence in the light most
favorable to the verdict, we conclude that a rational juror could have believed A.S.
and found beyond a reasonable doubt that appellant committed the offense. See
Turner v. State, 626 S.W.3d 88, 96 (Tex. App.—Dallas 2021, no pet.).
We overrule appellant’s first issue.
Jury Charge Errors
In his second and third issues, appellant contends that the trial court submitted
erroneous definitions or instructions to the jury in its charge. Appellate resolution of
a jury-charge issue involves two steps. First, we determine whether error exists.
Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). If error does exist, we
determine whether the error caused sufficient harm to warrant reversal. Ngo v. State,
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175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005). When—as in this case—the errors
were not objected to, we will reverse only if the error created egregious harm such
that the defendant was denied a fair and impartial trial. Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1985) (op. on reh’g). “Errors which 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 v. State, 332 S.W.3d 483, 490
(Tex. Crim. App. 2011).
Limiting Mental States to Relevant Conduct Elements
The indictment charged appellant with conduct that was performed
“intentionally and knowingly.” In his second issue, appellant complains that the trial
court’s charge incorrectly applied these mental states to all three possible conduct
elements—the nature of the conduct, the result of the conduct, and the circumstances
surrounding the conduct—in the definition section. Appellant argues that the
charge’s definitions of these mental states should have been limited to the nature of
appellant’s conduct, because aggravated sexual assault of a child is a nature-of-
conduct offense. See Gonzales v. State, 304 S.W.3d 838, 849 (Tex. Crim. App.
2010). Appellant did not object to the definitions at trial, so the error, if any, can
only support reversal if it caused appellant egregious harm. See Almanza, 686
S.W.2d at 171.
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The language in a jury charge concerning the culpable mental state must be
tailored to the conduct elements of the offense. Price v. State, 457 S.W.3d 437, 441
(Tex. Crim. App. 2015). The State argues that appellant has not explained how
giving the full definitions in statutory form is error. But even if we assume that the
trial court’s giving the full statutory definitions of the relevant culpable states was
error in this case, we must determine whether appellant was deprived of a fair and
impartial trial by the failure to limit the conduct element. See Almanza, 686 S.W.2d
at 171. To that end, we review 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. Taylor, 332 S.W.3d at 489.
For our purposes, the most important portion of the jury charge is the
application paragraph, which explains to the jury in concrete terms how to apply the
law to the facts of the case. Yzaguirre v. State, 394 S.W.3d 526, 530 (Tex. Crim.
App. 2013). “We 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.” Id. (footnote omitted). In appellant’s case, then, to assess harm
resulting from the inclusion of improper conduct elements in the definitions of
culpable mental states, we look first to determine whether the culpable mental states
were limited by the application paragraph. See Patrick v. State, 906 S.W.2d 481, 492
(Tex. Crim. App. 1995).
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The application paragraph in this case stated:
Now, bearing in mind the foregoing instructions and definitions, if you
find from the evidence beyond a reasonable doubt that on or about the
27th day of October, 2018, in the county of Dallas and the state of
Texas, the defendant, Carlos Lane, intentionally or knowingly caused
the sexual organ of A. S., a child, to contact and penetrate the mouth of
the defendant, and that at the time of the offense, A. S. was younger
than 14 years of age, then you will find the defendant guilty of the
offense of Aggravated Sexual Assault of a Child, as charged in the
indictment, and you shall not consider whether the defendant is guilty
of any lesser offenses that are included in the indictment.
(Emphasis added.) The application paragraph correctly limited the charged mental
states to appellant’s conduct, i.e., to having “intentionally or knowingly caused the
sexual organ of A.S., a child, to contact and penetrate the mouth of [appellant].”
Because the trial court’s application of the facts to the law pointed the jury to the
appropriate portion of the definitions, we perceive no harm resulting from its failure
to limit the definitions of culpable mental states to the conduct element of the
charged offense. See id. at 493.
That conclusion is supported by the remaining Almanza factors. A.S. testified
to the conduct at issue here, i.e., penetration of her sexual organ; in Detective
Foreman’s interrogation, appellant repeatedly denied that conduct. And trial
counsel’s argument focused entirely on whether that conduct had ever occurred: he
challenged the credibility of A.S.’s testimony, of Mother’s testimony concerning
A.S.’s outcry, and of the investigative system that allowed a “single statement” to
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bring appellant to arrest and trial.1 Indeed, our review of the record identified no
issue involving appellant’s mental state—only a credibility dispute as to whether the
charged conduct occurred.
Under the circumstances of this case, we conclude appellant was not harmed
egregiously by the trial court’s failure to limit the definition of mental states to the
conduct element at issue in this case. We overrule appellant’s second issue.
Definition of Reasonable Doubt
In his third issue, appellant argues that the trial court “committed structural
error by giving a definition of reasonable doubt in the jury charge.” In addressing
the burden of proof required for conviction, the trial court instructed the jury that the
State must prove the defendant guilty of every element of the offense charged
beyond a reasonable doubt. The instruction then stated: “The State is not required
to prove that a person is guilty beyond all doubt; the State must simply exclude all
reasonable doubt about the person’s guilt.” Appellant argues that this sentence
improperly defines “reasonable doubt” in violation of Paulson v. State, 28 S.W.3d
570 (Tex. Crim. App. 2000). We have previously—and repeatedly—considered the
substance of this instruction and held that it does not violate Paulson because it does
not define reasonable doubt. See O’Canas v. State, 140 S.W.3d 695, 701–02 (Tex.
1
Appellant’s counsel argued:
I’m asking you to find him not guilty because Carlos Lane did not do what the State alleged.
One statement is not enough. It’s not beyond a reasonable doubt, and it’s not proof that
Carlos Lane did anything to [A.S.].
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App.—Dallas 2003, pet. ref’d); see also Jackson v. State, No. 05-19-01043-CR,
2021 WL 791095, at *4–5 (Tex. App.—Dallas Mar. 2, 2021, pet. ref’d) (mem. op.,
not designated for publication) (collecting cases). The court’s instruction “simply
states the legally correct proposition that the prosecution’s burden is to establish
proof beyond a reasonable doubt and not all possible doubt . . . [and] does not
attempt to aid jurors in determining whether their doubts are reasonable.” O’Canas,
140 S.W.3d at 702 (emphasis original).
The trial court did not err in instructing the jury as it did here. We overrule
appellant’s third issue.
Transfer of the Case
In his fourth issue, appellant asserts that the trial court lacked jurisdiction to
hear his case because the case was not transferred to its docket. Specifically,
appellant contends that because the indictment was presented by the grand jury of
the 194th District Court, jurisdiction vested in that court, and the record does not
contain an order transferring the case to Criminal District Court No. 7. Thus, he
contends, the trial court never acquired jurisdiction to hear appellant’s case.
Appellant’s counsel concedes that legal authority is contrary to this argument,
which he has raised in this Court many times. “When a defendant fails to file a plea
to the jurisdiction, he waives any right to complain that a transfer order does not
appear in the record.” Keller v. State, 604 S.W.3d 214, 231 (Tex. App.—Dallas
2020, pet. ref’d). Appellant did not file a plea to the jurisdiction in this case. He has
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waived this complaint. Moreover, we have repeatedly rejected the substance of
appellant’s argument, even if it had been preserved. See, e.g., Bourque v. State, 156
S.W.3d 675, 678 (Tex. App.—Dallas 2005, pet. ref’d) (cases returned by a grand
jury are not necessarily assigned to the court that impaneled the grand jury).
We overrule appellant’s fourth issue.
Conclusion
We affirm the trial court’s judgment.
/Bill Pedersen, III//
BILL PEDERSEN, III
211037f.u05 JUSTICE
Do Not Publish
TEX. R. APP. P. 47
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CARLOS BERNARD LANE, On Appeal from the Criminal District
Appellant Court No. 7, Dallas County, Texas
Trial Court Cause No. F18-76576-Y.
No. 05-21-01037-CR V. Opinion delivered by Justice
Pedersen, III. Justices Myers and
THE STATE OF TEXAS, Appellee Garcia participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 4th day of November, 2022.
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