Johnny Hollis King v. State ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00395-CR
JOHNNY HOLLIS KING,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 13th District Court
Navarro County, Texas
Trial Court No. 32383-CR
MEMORANDUM OPINION
Johnny Hollis King appeals from his conviction for ten separate counts of
indecency with a child by contact. TEX. PEN. CODE ANN. § 21.11 (Vernon 2003). Based
on pleas of true to two enhancement paragraphs and the jury‖s verdict on punishment,
he was sentenced to imprisonment for fifty (50) years in the Texas Department of
Criminal Justice – Institutional Division for each count, to be served consecutively.
King complains that the evidence was both legally and factually insufficient to sustain
his conviction, that the trial court abused its discretion in the admission of testimony of
a witness, that the trial court abused its discretion by discharging a juror during the
trial, and that the jury charge was erroneous. Because we find no reversible error, we
affirm the judgments of the trial court.
Legal and Factual Sufficiency
King complains that the evidence was both legally and factually insufficient for
the jury to have found that he: (1) touched M.K.; (2) touched M.K. on the breast and
genitals on any one occasion; (3) touched M.K. on ten separate occasions in 2008; (4)
touched M.K. with the required intent.
Standard of Review
In reviewing the legal sufficiency of the evidence to support a conviction, we
view all of the evidence in the light most favorable to the prosecution in order to
determine 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, 99 S. Ct.
2781, 2789, 61 L. Ed. 2d 560 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007). Furthermore, we must consider all the evidence admitted at trial, even
improperly admitted evidence, when performing a legal sufficiency review. Clayton,
235 S.W.3d at 778; Moff v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004). The
standard of review is the same for direct and circumstantial evidence cases;
circumstantial evidence is as probative as direct evidence in establishing an actor‖s
guilt. Clayton, 235 S.W.3d at 778; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007).
When reviewing the factual sufficiency of the evidence to support a conviction,
we view all the evidence in a neutral light, favoring neither party. Steadman v. State, 280
S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim.
King v. State Page 2
Ohio App. 2006). We then ask whether the evidence supporting the conviction, although
legally sufficient, is nevertheless so weak that the fact-finder‖s determination is clearly
wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the
evidence supporting the conviction that the fact-finder‖s determination is manifestly
unjust. Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at 414-15, 417. Unless we
conclude that it is necessary to correct manifest injustice, we must give due deference to
the fact-finder‖s determinations, “particularly those determinations concerning the
weight and credibility of the evidence.” Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App.
2000); see Steadman, 280 S.W.3d at 246.
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not enough
that we “harbor a subjective level of reasonable doubt to overturn [the] conviction.”
Watson, 204 S.W.3d at 417. We may not simply substitute our judgment for the fact-
finder‖s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App.
1997). Unless the record clearly reveals that a different result is appropriate, we must
defer to the jury‖s determination of the weight to be given contradictory testimonial
evidence because resolution of the conflict “often turns on an evaluation of credibility
and demeanor, and those jurors were in attendance when the testimony was delivered.”
Johnson, 23 S.W.3d at 8. A factual sufficiency review of circumstantial evidence is the
same as a review of direct evidence. King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App.
2000); Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999) (reasoning that
“[c]ircumstantial evidence, by itself, may be enough to support the jury‖s verdict”).
The Facts
King v. State Page 3
King and Mary, a pseudonym for M.K.‖s mother, had been together on and off
for approximately fifteen years. Mary‖s two younger daughters, M.K. and O.K., shared
a twin bed in a bedroom in Mary‖s home that did not have a door on it. King would
spend several nights a week at this residence between 2007 and early 2009, when he
was arrested for these offenses.
M.K. was fourteen years old at the time of trial. She testified that during the
relevant time periods, she would sleep on the outside of the bed and her sister, O.K.,
would sleep next to the wall. M.K. testified that “really every night unless he wasn‖t
there,” King would come into her room and touch her on the breast and/or genital area
through her clothing. She would act like she was waking up when King did this, and
he would “act like he was telling me to go to the restroom or getting a dirty dish or
something that was sitting around.” She testified that this began when she was eleven
or twelve years old and continued until the end of 2008.
M.K. testified that one day in late 2008, King called her while she was out with
some friends and as part of the conversation told her not to wear panties when she went
to bed that night. Additionally, when they all got home, King said it to her again. Later
that evening, M.K., Mary, and O.K. left the residence, and while they were gone, M.K.
told Mary what King had told her and begged her mother not to go to sleep that night.
They went back to their residence and played games until very early the next morning.
When King went to the restroom, M.K., O.K., and Mary snuck out of the residence and
went to a relative‖s home.
A few days later, M.K. was interviewed at the local child advocacy center and
gave the same version of events. She attended therapy and told the therapist that King
King v. State Page 4
had been touching her for a long time. Additionally, M.K. had told her mother one time
previously that King had touched her inappropriately, but King told Mary that he was
just checking to see if M.K. had wet the bed. M.K. had a problem with bedwetting
during the times that King resided with them, but apparently did not when he was out
of the home.
At trial, M.K. described an event that took place in her home when she got in
trouble for a note that she was accused of passing at school. She testified that King
threatened to give her thirty licks if she did not remove her shorts and underwear and
lay on a bed with her legs spread open, so she did so, although she fought him. King
told her he needed to check to see if she was messing around with boys and touched
her genital area “skin to skin.” Additionally, at another time, M.K. testified to seeing
King lying on top of O.K. in her mother‖s bed with one leg on the bed and one on the
floor. When he saw M.K., he got off of O.K. and acted as though he was looking for
shoes. She had come into the room because she heard the bed “moving real quick
against the headboard against the wall.” She had woken up one night to see King touch
her sister on the buttocks, and moved closer to O.K. to protect her from King. O.K.
denied any inappropriate behavior when she was interviewed at the child advocacy
center. M.K. further described an instance one night when King came into her room she
saw his penis halfway out of his underwear next to her head but did not know if it was
erect or not. At some point, King told M.K. he would f--- her up if she told anyone.
King testified on his own behalf and denied that he had ever touched M.K. in
any manner while she was sleeping. He stated that he did go into the girls‖ room at
night to turn off the television or radio, to get dirty dishes out of the room, or to tell
King v. State Page 5
M.K. that she needed to get up to go to the bathroom. King had been to prison six times
and had a history of drug dealing and weapons violations. He was involved with three
women while he was living with Mary. King believed that M.K. had made up the
allegations at Mary‖s urging because her mother was upset that he was involved with
other women.
The forensic interviewer from the children‖s advocacy center and M.K.‖s
therapist both testified regarding M.K.‖s outcry and description of what King did to her.
The forensic examiner testified that M.K. did not appear to have been coached by
anyone. The therapist stated that she believed that M.K. was not faking.
King‖s first claim is that the evidence was both legally and factually insufficient
for the jury to have found that he committed the offenses at all. There was no physical
evidence of any offense and the only witness to the occurrences was M.K. herself, and
King denies touching her entirely. However, the testimony of a child victim is sufficient
to support a conviction for indecency with a child. Martinez v. State, 178 S.W.3d 806, 814
(Tex. Crim. App. 2005). Further, it is the responsibility of the jury to determine the
credibility and weight of the witnesses‖ testimony, as we are unable to observe the
demeanor and credibility of the witnesses from a cold record. Johnson v. State, 23
S.W.3d 1, 9 (Tex. Crim. App. 2000).
King next complains that the evidence was legally and factually insufficient for
the jury to have determined that he touched both M.K.‖s breast and genitals on the same
occasion. However, M.K.‖s testimony was that he touched her on both her breast and
her genitals pretty much every night that he was at their house. The forensic examiner
King v. State Page 6
from the child advocacy center testified that M.K. stated that King touched her on both
her breast and genitals with his hand almost nightly.
King also complains that the evidence was legally and factually insufficient for
the jury to have determined that he touched M.K. on ten separate occasions in 2008
because M.K. was not able to conclusively establish that King touched her in 2008, but
had stated that it began when she was 11 or 12, which would have been in 2007. M.K.
was unable to give exact dates of the touching incidents, but testified that they occurred
pretty much every night that King spent the night at their home. Mary testified that
King spent the night at her house at least four nights a week from May of 2008 through
his arrest for this offense in early 2009. King does not argue that the evidence was
insufficient for the jury to have found that he committed the offenses on the specific
dates as alleged in the indictments, but that it was insufficient for the jury to have found
that he committed the offenses in 2008. Additionally, King did not dispute the fact that
he resided in Mary‖s residence fairly regularly in 2008.
King‖s final contention is that the evidence was legally and factually insufficient
for the jury to have found that he committed the offenses with the intent to arouse or
gratify his sexual desire. TEX. PEN. CODE ANN. § 21.11(c) (Vernon 2003). “The requisite
specific intent to arouse or gratify can be inferred from the defendant‖s conduct and
remarks and all the surrounding circumstances.” Villanueva v. State, 209 S.W.3d 239,
246 (Tex. App.—Waco 2006, no pet.); accord Abbott v. State, 196 S.W.3d 334, 340 (Tex.
App.—Waco 2006, pet. ref'd); see Cunningham v. State, 726 S.W.2d 151, 154 (Tex. Crim.
App. 1987). The jury can infer intent to arouse or gratify sexual desire from King‖s act
of touching the child‖s genitals. Abbott, 196 S.W.3d at 340.
King v. State Page 7
We find that the jury could infer from King‖s conduct of touching M.K.‖s breasts
and genitals that it was done with the intent to arouse and gratify his sexual desire. See
Abbott, 196 S.W.3d at 341; Fetterolf v. State, 782 S.W.2d 927, 933 (Tex. App.—Houston
[14th Dist.] 1989, pet. ref‖d) (requisite intent to arouse and gratify sexual desire found
from defendant‖s touching sleeping child‖s breast). The evidence that King committed
the same conduct on other occasions is additional evidence of intent. See Morgan v.
State, 692 S.W.2d 877, 881 (Tex. Crim. App. 1985) (evidence that defendant had touched
complainant in same manner on the night before the charged offense and on previous
occasions had “indubitable probative value” of defendant‖s intent).
We find that by viewing all of the evidence in the light most favorable to the
verdict that the jury could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d
560 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Therefore, the
evidence was legally sufficient. We overrule issue one.
Further, when we view the evidence in a neutral light, favoring neither party, we
cannot find that the evidence was so weak that the jury‖s determination is clearly wrong
and manifestly unjust or that conflicting evidence so greatly outweighs the evidence
supporting the conviction that the jury‖s determination is manifestly unjust. Steadman,
280 S.W.3d at 246; Watson, 204 S.W.3d at 414-15, 417. Therefore, the evidence was also
factually sufficient. We overrule issue two.
Admission of Evidence
King complains that the trial court abused its discretion in allowing an expert
witness to testify as to M.K.‖s credibility and in denying a motion for mistrial because
King v. State Page 8
that testimony had the effect of replacing the jury as the fact-finder. We review the trial
court‖s decision to admit or exclude evidence under an abuse of discretion standard.
Montgomery v. State, 810 S.W.2d 372, 390-91 (Tex. Crim. App. 1990) (op. on reh'g) (“as
long as the trial court‖s decision was within the zone of reasonable disagreement and
was correct under any theory of law applicable to the case, it must be upheld”).
King complains of several different segments of testimony given by M.K.‖s
therapist that he contends violated Rule 704 of the Rules of Evidence. Rule 704 states
that “[t]estimony in the form of an opinion or inference otherwise admissible is not
objectionable because it embraces an ultimate issue to be decided by the trier of fact.”
TEX. R. EVID. 704. King contends that in certain segments of her testimony, the therapist
improperly gave the opinion that M.K. was truthful in her allegations, that she stated
that sexual abuse had in fact occurred, and that she referred to King inappropriately as
the “perpetrator.”
King first complains about the following question asked by the State: “I believe
you mentioned trauma, that you believed she had experienced some trauma. How did
you know that?” King objected to the question and the objection was sustained.
However, King did not request a limiting instruction or seek any further relief from the
trial court. The second question King complains about is the following question by the
State: “What do you believe she was not faking about?” King objected, but no ruling
was made by the trial court because the State offered to rephrase the question. In order
to preserve error, the party asserting an objection must pursue the matter to the point of
receiving an adverse ruling from the trial court. Tucker v. State, 990 S.W.2d 261, 262
(Tex. Crim. App. 1999). The proper method of pursuing an objection to an adverse
King v. State Page 9
ruling has three parts. They are: (1) object and, if the objection is sustained; (2) request
an instruction to disregard and, if granted; (3) move for a mistrial. Fuller v. State, 827
S.W.2d 919, 926 (Tex. Crim. App. 1992).
King also complains of an answer given by the therapist in response to questions
from the State regarding her diagnosis of sexual abuse of a child relating to M.K. The
State asked the therapist: “What things did you see in your sessions that you felt
justified in putting that label on her, so to speak?” The therapist responded: “The only
way that that can be diagnosed is if that‖s the presenting problem for the child. And for
[M.K.] that was the only reason I was seeing her is because there was sexual abuse.”
King objected, and the trial court sustained the objection and gave an instruction to the
jury to disregard the last part of the answer. King‖s motion for mistrial was denied.
Additionally, King complains of an answer given in response to a question
regarding M.K.‖s progress in counseling where the therapist stated: “I feel like [M.K.]
was able to continue to move forward because she has such a strong family background
and support. I also believe because the person that perpetrated this abuse was no
longer in her home.” King objected, and the trial court sustained the objection and gave
an instruction to the jury to disregard the last part of the answer. King‖s motion for
mistrial based on the statement and the testimony as a whole was denied.
The next question from the State was whether M.K. had identified “the
perpetrator, the person that she said came in and touched her,” which was answered
affirmatively. The State then asked, “And were you aware that the perpetrator was out
of the home?” This was also answered affirmatively. King then objected on the basis of
rule 704. The trial court overruled King‖s objections. In order to preserve error, an
King v. State Page 10
objection should be made as soon as the ground for objection becomes apparent.
Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997). Generally, this occurs
when the evidence is admitted. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App.
1995). If a party fails to object until after an objectionable question has been asked and
answered, and he can show no legitimate reason to justify the delay, his objection is
untimely and error is waived. Id. In this instance, King waited until after both
objectionable questions had been asked and answered. King has provided no reason to
justify his delay in objecting.
The two properly preserved objections to the testimony of M.K.‖s therapist are
based on the trial court‖s purported abuse of discretion in failing to grant King‖s motion
for mistrial, which was the only adverse ruling made by the trial court against King in
each instance. Mistrial is appropriate for only “highly prejudicial and incurable errors,”
and “may be used to end trial proceedings when faced with error so prejudicial that
―expenditure of further time and expense would be wasteful and futile.‖” Hawkins v.
State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004); Simpson v. State, 119 S.W.3d 262, 272
(Tex. Crim. App. 2003) (quoting Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App.
2000)).
The trial court promptly instructed the jury to disregard the objected-to
testimony both times when requested as described above. See Ovalle v. State, 13 S.W.3d
774, 783 (Tex. Crim. App. 2000) (“Ordinarily, a prompt instruction to disregard will cure
error associated with an improper question and answer.”). When a trial court instructs
a jury to disregard certain testimony, we presume that the jury follows the trial court‖s
instructions. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999); cf. Wood, 18 S.W.3d
King v. State Page 11
at 648 (noting that a trial court is required to grant a motion for mistrial only when the
improper question is “clearly so prejudicial to the defendant and is of such character as
to suggest the impossibility of withdrawing the impression produced on the minds of
the jurors.”). After reviewing the record, we cannot conclude that the jury did not
follow the trial court‖s instructions to disregard the witness‖s references. This is
especially true in light of the fact that during the re-direct examination by the State, the
therapist testified without objection that M.K. did not appear to be malingering or lying
about what she had told the therapist without objection by King. M.K. had clearly
identified King as the person who had touched her. Additionally, we have determined
that the other objection to the use of the term “perpetrator” referring to King was not
timely and was waived. We find that the trial court did not abuse its discretion in
denying either of the above motions for mistrial.
King further contends that the trial court abused its discretion by not striking the
therapist‖s testimony in its entirety because of the cumulative nature of the errors. In
this regard, King presents no authority to support his argument that the testimony
should have been stricken in its entirety. Citation to authorities is required in order to
properly present an issue to this Court. TEX. R. APP. P. 38.1. This portion of his issue is
inadequately briefed and is therefore, waived. See TEX. R. APP. P. 38.1(h). We overrule
issue three.
Removal of Juror
King complains that the trial court erred by removing a juror during the trial,
which resulted in a verdict by only eleven jurors. King contends that the juror was not
disabled, and therefore the trial court abused its discretion in removing the twelfth
King v. State Page 12
juror. During voir dire, Kamia Davis admitted to knowing King, M.K., and Mary, but
only on an informal basis. Davis affirmed that she could be impartial if selected as a
juror. Davis was impaneled as a juror.
On the first day of testimony, the State presented a witness who testified outside
of the presence of the jury that he knew both King and Davis, and had smoked
marijuana with them on two occasions approximately one year prior to the trial. There
were five or six persons present each time. The trial court questioned Davis in camera
and Davis denied smoking marijuana with King and stood by her answers given during
voir dire. The trial court took no further action at that time.
The next day, the State presented two more witnesses, who were questioned by
the trial court as to the relationship between King and Davis. The first witness, worked
with another prospective juror who had told her about Davis‖s denial of a relationship
with King. The witness testified that she had personally seen King and Davis together
under a tree, which was a local gathering spot for smoking and drinking in a group of
15-20 people, although she did not know if King and Davis had a conversation or were
together. The witness stated that she observed them at the tree “just virtually daily”
before King was arrested for these offenses.
The prospective juror who had spoken with the first witness about Davis and
King had never met King, but had heard of him as she lived in the same town as he did.
At a break, the prospective juror asked Davis if she knew King, and Davis said that she
did know him, that he was Mary‖s John. Davis told the prospective juror that King‖s
current girlfriend, Shae, had approached Davis and told her, “Don‖t find my baby
King v. State Page 13
guilty.” Davis told the prospective juror that she had kept walking like she did not hear
Shae‖s comment.
Davis and the prospective juror went to lunch together on a break during voir
dire. Davis told the prospective juror that she knew him more than what she was
letting the trial court know. Davis told her that one day King had stalked a little girl
who was about twelve years old, which was reported by the child‖s father to the
sheriff‖s department. Although King could not be arrested, he was told he could not be
in a school zone. Davis also told the prospective juror that King had told her that he
had gone to another city and slept with another girl and that the little girl he had slept
with was his biological child. The prospective juror stated that Davis told her that King
had personally said that he had done that, and that it wasn‖t something she had heard
from someone else. The prospective juror did not know King, nor had she been around
the tree. During voir dire, this prospective juror had stated that she did not feel that she
could be impartial because of the rumors she had heard about King.
The trial court found that Davis was disabled because of bias, and discharged her
from the jury. King objected to the dismissal but did not request a mistrial. Based
upon our review of the record, we hold that the trial court did not abuse its discretion
by determining that juror Davis was disabled as that term is used in Article 36.29. We
overrule issue four.
Jury Charge Error
King complains that the trial court erred in the submission of the application
paragraph of the charge because it improperly set forth the mens rea required for
conviction in that it allowed the jury to convict him of indecency with a child for
King v. State Page 14
“intentionally or knowingly” engaging in sexual contact with M.K., although the proper
mens rea for the offense is the specific intent “to arouse or gratify the sexual desire of
any person.” TEX. PEN. CODE ANN. § 21.11(c) (Vernon Supp. 2009).
Standard of Review
It is undisputed that King did not object to the charge on this basis. Because
there was no objection made to the charge by King, we must first determine whether
the charge as submitted to the jury was erroneous and if so, we must then analyze this
complaint utilizing the standard of Almanza v. State. Allen v. State, 253 S.W.3d 260, 264
(Tex. Crim. App. 2008) (citing Olivas v. State, 202 S.W.3d 137, 143-44 (Tex. Crim. App.
2006), citing Almanza, 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, 202 S.W.3d at 144.
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).
Applicable Statutes
The elements of indecency with a child are that the accused (1) engaged in
“sexual contact,” (2) with a child, (3) younger than seventeen years of age, (4) whether
the child is of the same or opposite sex. See id. § 21.11(a)(1). “Sexual contact” means the
King v. State Page 15
following acts, if committed with the intent to arouse or gratify the sexual desire of any
person: (1) any touching by a person, including touching through clothing, of the anus,
breast, or any part of the genitals of a child; or (2) any touching of any part of the body
of a child, including touching through clothing, with the anus, breast, or any part of the
genitals of a person. Id. § 21.11(c).
Analysis
In this case, the abstract portion of the jury charge provided: “Our law provides
that a person commits an offense if, with a child younger than 17 years old and not his
spouse, whether the child is the same or opposite sex, he engages in sexual contact with
the child.” It also defined “sexual contact” as “any touching of any part of the genitals
or breasts of another person with intent to arouse or gratify the sexual desire of any
person.” Although the abstract portion of the charge did not use the terms
“intentionally” or “knowingly” in defining the applicable substantive law, it included
full statutory definitions of “intentionally” and “knowingly.”
The application portion of the jury charge allowed the jury to convict King of
indecency with a child if it found beyond a reasonable doubt that “with the intent to
arouse or gratify [his] sexual desire, [he] . . . intentionally or knowingly engage[d] in
sexual contact with M.K. by touching her breasts and genitals” on ten separate dates,
each constituting a separate offense.
Because the application paragraph disjunctively listed the culpable mental states
of “intentionally” and “knowingly” with the specific intent necessary to complete the
offense, the jury could have convicted King without consideration of whether he acted
with the proper mens rea required by the statute, which constitutes charge error.
King v. State Page 16
Bazanes v. State, 310 S.W.3d 32, 37 (Tex. App.—Fort Worth 2010, pet. ref‖d); see Jones v.
State, 229 S.W.3d 489, 492 (Tex. App.—Texarkana 2007, no pet.) (finding error when
charge “stated that indecency with a child is committed if the person intentionally or
knowingly engages in sexual contact with a child”); see also Rodriguez v. State, 24 S.W.3d
499, 502 (Tex. App.—Corpus Christi 2000, pet. ref'd). Therefore, we will review the
record to determine whether this error could have caused egregious harm to King,
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 of the charge
correctly set forth the definition of indecency of a child without including the improper
“intentionally” or “knowingly.” The jury charge as a whole lessens any potential harm
suffered by King.
The State of the Evidence
Regarding the state of the evidence, the primary contested issue at trial was
whether M.K.‖s testimony was credible. As we explained more fully in addressing
King‖s sufficiency of the evidence issues above, the specific intent required for the
offense of indecency with a child may be inferred from King‖s conduct, his remarks,
and all of the surrounding circumstances—specifically including M.K.‖s testimony. See
McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981). The jury, as
the sole judge of the credibility of the witnesses and the weight to be given their
King v. State Page 17
testimony, could have inferred that King had the intent to arouse or gratify his sexual
desire from M.K.‖s testimony about the incidents. See id.
Arguments of Counsel
Neither party discussed the precise elements as listed in the charge during their
closing arguments. We find nothing in the closing arguments by either the State or
King that indicates that King was harmed by the error.
Other Information in the Trial as a Whole
After a review of the record, we note that the indictments track the same
objectionable language as the charge; however, King did not challenge the indictment.
Any potential error in the indictment was therefore, waived. See TEX. CODE CRIM. PROC.
ANN. art. 1.14(b) (Vernon 2005). The use of the phrase “intentionally and knowingly”
was used intermittently during voir dire during the description of the offense by both
the State and King. The State‖s opening statement did not include that reference but
cited the statute correctly. King did not refer to it at all during his opening statement.
We do not find that the trial as a whole more than minimally increased any potential
harm to King.
We do not find that King was egregiously harmed by the erroneous inclusion of
the terms “intentionally and knowingly” in the jury charge. We overrule issue five.
Conclusion
We find that the evidence was both legally and factually sufficient for the jury to
have found King guilty of the offenses. We find that the trial court did not abuse its
discretion in the admission of the testimony of the therapist. We find that the trial court
did not abuse its discretion in the discharge of juror Davis. We find that while there
King v. State Page 18
was error in the jury charge, King was not egregiously harmed by that error. We affirm
the judgments of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed September 1, 2010
Do not publish
[CRPM]
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