Mohammed Omar Ali v. the State of Texas ( 2023 )

Opinion issued May 4, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-21-00604-CR
NO. 01-21-00605-CR
NO. 01-21-00607-CR
———————————
MOHAMMED OMAR ALI, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 400th District Court
Fort Bend County, Texas
Trial Court Case Nos. 20-DCR-090153, 20-DCR-090152, 20-DCR-090150A
MEMORANDUM OPINION
Appellant Mohammed Omar Ali appeals from his convictions and
punishments for three related sex offenses against three of his former stepdaughters:
one count of the first-degree felony offense of aggravated sexual assault of a child
and two counts of the second-degree felony offense of indecency with a child by
sexual contact.1 See TEX. PENAL CODE §§ 22.021(a)(1)(B)(i), (2)(B), (e),
21.11(a)(1), (d). The trial court sentenced Ali to thirty-five years’ imprisonment for
the aggravated sexual assault conviction and ten years’ imprisonment for each of the
convictions for indecency with a child, with the sentences to run concurrently. Id. at
§§ 12.32(a), 12.33(a).
In appellate cause number 01-21-00604-CR, which is an appeal from one of
the convictions for indecency with a child, Ali argues in a single issue that the trial
court erred by improperly commenting on the weight of the evidence in the jury
charge. In appellate cause numbers 01-21-00605-CR and 01-21-00607-CR, Ali’s
appointed counsel on appeal has filed a motion to withdraw, along with an Anders
brief stating that the records in these two appeals present no reversible error and the
two appeals are without merit and are frivolous. We affirm.
1
Appellate cause number 01-21-00604-CR corresponds to trial court case number
20-DCR-090153, concerning one of the convictions for indecency with a child.
Appellate cause number 01-21-00605-CR corresponds to trial court case number
20-DCR-090152, concerning the second conviction for indecency with a child.
Appellate cause number 01-21-00607-CR corresponds to trial court case number
20-DCR-090150A, concerning the conviction for aggravated sexual assault of a
child under fourteen years of age.
2
Background
In 2013, Ali married Rose Ira and moved into her Fort Bend County home.2
Ira was previously married to Alex Ira, who died in a car accident in 2008, and the
Iras had nine children together: two sons and seven daughters ranging in age from
fifteen to thirty-one years old at the time of trial. Relevant here, the seven sisters
included Lily, the oldest child; Fanny, the middle child; Jenny and Amy, two of the
younger children; and Yvette, the youngest child. Each of these sisters—along with
a brother and an uncle—lived at home with Rose when Ali moved into the home,
although some of these family members eventually moved out of the house.
Ali was devoutly religious. He taught the Quran at a local mosque and also
privately tutored some children in their religious studies. When he moved into the
Ira home, Ali took an active role in the religious education of the Ira children who
still lived at home. For example, he would wake the children up each morning before
the sun rose to pray and tutor them in the Quran. He also drove some of the children
to school and other activities.
In 2013, when Fanny was fifteen years old, she and Ali were studying the
Quran together in Ali and Rose’s bedroom, which they did not typically do. No one
else was in the bedroom, although some other family members were in the adjacent
2
We use pseudonyms to protect the privacy of the minor complainants and their
family members.
3
living room. While standing next to Fanny, Ali began touching Fanny’s breasts and
vagina over her clothing. Fanny left the bedroom, found her oldest sister Lily, and
reported Ali’s conduct.3 Lily promptly told her mother and brother, who were in the
living room, and they in turn confronted Ali, who excused the touching as a
misunderstanding. The family accepted this explanation and took no other action on
the allegations at that time. Fanny testified at trial, however, that Ali would often
come into her bedroom early in the morning and wake her by touching her body,
which made her feel uncomfortable.
In December 2019, Lily heard concerning rumors about Ali’s behavior in the
community. She called a family meeting, which Ali attended along with Rose and
all the siblings except the two youngest sisters: Amy and Yvette.4 While Lily was
discussing the rumors, Fanny mentioned the 2013 incident with Ali. At that point,
Jenny began hyperventilating and having a panic attack, which Lily recognized
because she was an emergency room nurse. Jenny, who was seventeen years old
when the meeting occurred, told everyone in the room that Ali had touched her
inappropriately too. She testified at trial that Ali repeatedly molested her beginning
when she was in fifth grade and “throughout middle and high school years.”
3
Fanny testified that she typed out what had happened in an app on her phone, which
she then showed to Lily.
4
Fanny and her two brothers had moved out of the house by this time and participated
in the meeting by FaceTime videoconferencing.
4
After hearing these allegations against Ali, Lily went to Amy’s bedroom and
asked Amy if Ali had ever touched her inappropriately. Lily testified that Amy began
“shaking and crying” and made an outcry to Lily. Amy told Lily—and testified at
trial—that in March 2017, when Amy was thirteen years old and in seventh grade,
Ali attempted to have sexual intercourse with her. At the time, Rose and Lily had
taken a trip to Dubai while the children remained at home with Ali. Amy became
sick at school and was sent home. Amy was vomiting, so Ali insisted that she lie
down in his and Rose’s bed ostensibly so she could be nearer to a bathroom. While
sleeping, Amy woke up to Ali removing her underwear and attempting to have
sexual intercourse with her, causing her pain. Amy testified that Ali molested her
several times before this incident in her bedroom at night by touching her
inappropriately while he masturbated.
The Ira family confronted Ali with these allegations, and Ali packed up his
belongings and left the house. The family did not see Ali again until trial in these
cases.
Fanny decided to report Ali’s behavior to law enforcement shortly after the
December 2019 family meeting. Two of the children—Jenny and Amy—were
forensically interviewed by specialists at the Fort Bend County Children’s Advocacy
Center (“CAC”), which offers services to children who have or may have been
sexually or physically abused.
5
Investigators with the Fort Bend County Sheriff’s Office interviewed Fanny,
who was then an adult. The investigators had Fanny call Ali from her cell phone and
attempt to obtain a recorded confession from him, and the recording was entered into
evidence at trial and played to the jury. A transcript of the call was also admitted
into evidence. Fanny made the call while in the police station with investigators and
Lily present, although she told Ali she was alone when he voiced suspicion that other
people were listening in. Fanny repeatedly pressed Ali to promise to stop touching
her and her sisters and to accept responsibility for his actions. Although Ali
equivocated on his responses, Fanny testified that he did not deny the allegations
and he promised to stop touching the sisters.
Ali was indicted for three separate offenses.5 The most significant charge was
for the first-degree felony offense of aggravated sexual assault of Amy, who was
under fourteen years of age at the time of the offense. Ali was also charged with two
counts of indecency with a child by sexual contact, one count each for his conduct
towards Jenny and Fanny, respectively, who were both under the age of seventeen
at the time of the offenses. At trial, Lily, Fanny, Jenny, and Amy testified, as did the
director of the CAC and the investigating officer.
5
The appellate record indicates that Ali was charged in six separate indictments for
the offenses of continuous sexual abuse of a young child and indecency with a child.
The appeals at issue here concern only the three convictions discussed herein, and
the appellate record does not indicate the outcome of the remaining indictments.
6
A jury convicted Ali of each charge, and the trial court certified Ali’s right of
appeal.
During the punishment phase, Yvette, who was the youngest of the nine
children and fifteen years old at trial, testified that Ali had also sexually molested
her. She testified that two years earlier, when she was thirteen years old and in
seventh grade, Ali came into her bedroom one morning while she was still asleep
and touched her private areas over her clothing. She also testified that Ali touched
her on other occasions while the two of them were driving in the family car. Yvette
reported these incidents to Lily during the December 2019 family meeting after the
other sisters made outcries. Yvette was also interviewed by the CAC. Yvette was the
only witness to testify during the punishment phase.
Ali elected for the trial court to assess punishment. The court sentenced Ali to
thirty-five years’ imprisonment for the aggravated sexual assault conviction and ten
years’ imprisonment for each of the convictions for indecency with a child by sexual
contact, to run concurrently. Ali filed notices of appeal in each of the three cases.
Jury Charge
In a single issue in cause number 01-21-00604-CR—which is the appeal from
the conviction for indecency with Jenny by sexual contact—Ali contends that the
jury charge for this conviction erroneously contained an improper comment on the
weight of the evidence, which caused him egregious harm. Specifically, Ali argues
7
that the description of the State’s elected act omitted an “alleged” modifier, and
therefore constituted a comment on the weight of the evidence.
A. Standard of Review
We review a complaint of jury charge error regardless of whether error was
preserved. Gonzalez v. State, 610 S.W.3d 22, 27 (Tex. Crim. App. 2020); Kirsch v.
State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). Review of jury charge error
involves a two-step process. Kirsch, 357 S.W.3d at 649. First, we determine whether
the charge is erroneous. Id. If it is erroneous, then we analyze the error for harm. Id.If the error was preserved with a timely objection, then the error is reversible if it
caused “some harm.” Gonzalez, 610 S.W.3d at 27.
But where, as here, the defendant did not object, the error is reversible only if
it caused the defendant “egregious harm.” Id. Errors resulting in egregious harm are
those that affect “the very basis of the case,” “deprive the defendant of a valuable
right,” or “vitally affect a defensive theory.” Id. (quoting Ngo v. State, 175 S.W.3d
738, 750 (Tex. Crim. App. 2005)). Under either harm standard, the appellant must
have suffered actual harm, not merely theoretical harm. Id. In determining whether
egregious harm is present, we review the entire record and consider four factors: the
entirety of the charge, the state of the evidence, the arguments to the jury, and any
other relevant information. Id.; French v. State, 563 S.W.3d 228, 235–36 (Tex. Crim.
App. 2018).
8
B. Governing Law
A trial court is required to issue to the jury “a written charge distinctly setting
forth the law applicable to the case; not expressing any opinion as to the weight of
the evidence, not summing up the testimony, [and not] discussing the facts or using
any argument in his charge calculated to arouse the sympathy or excite the passions
of the jury.” TEX. CODE CRIM. PROC. art. 36.14; see Kirsch, 357 S.W.3d at 651. “The
purpose of the jury charge is to inform the jury of the applicable law and guide them
in its application to the case.” Beltran De La Torre v. State, 583 S.W.3d 613, 617
(Tex. Crim. App. 2019) (quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.
App. 1996)).
“A trial judge must maintain neutrality in providing such information and
guidance” to the jury and “may not express any opinion on the weight of the evidence
or draw the jury’s attention to particular facts.” Id. Article 36.14 “is designed to
prevent a jury from interpreting a judge’s comments as a judicial endorsement or
imprimatur for a particular outcome.” Id. An instruction “by the trial judge to the
jury on the weight of the evidence reduces the State’s burden of proving guilt beyond
a reasonable doubt to the jury’s satisfaction.” Brown v. State, 122 S.W.3d 794, 798
(Tex. Crim. App. 2003) (citation omitted).
A trial court generally should avoid including a non-statutory instruction in a
jury charge because such an instruction often constitutes an impermissible comment
9
on the weight of the evidence. Beltran De La Torre, 583 S.W.3d at 617. Even an
innocent attempt to provide clarity through a neutral instruction may be construed
as a comment on the weight of the evidence if the instruction “singles out a particular
piece of evidence for special attention,” which the jury may then interpret as
guidance from the presiding judge. Id. (quoting Rocha v. State, 16 S.W.3d 1, 20
(Tex. Crim. App. 2000)); see Bartlett v. State, 270 S.W.3d 147, 152 (Tex. Crim.
App. 2008) (stating that “seemingly neutral instruction” may constitute
impermissible comment on weight of evidence because instruction singles out
particular piece of evidence for “special attention”). “[S]pecial, non-statutory
instructions, even when they relate to statutory offenses or defenses, generally have
no place in the jury charge.” Beltran De La Torre, 583 S.W.3d at 617 (quoting
Walters v. State, 247 S.W.3d 204, 211 (Tex. Crim. App. 2007)). A non-statutory jury
instruction will generally constitute an impermissible comment when the instruction
“(1) is not grounded in the Penal Code, (2) is covered by the general charge to the
jury, and (3) focuses the jury’s attention on a specific type of evidence that may
support an element of an offense or a defense.” Id. (quoting Walters, 247 S.W.3d at
212).
The Texas Court of Criminal Appeals has identified “three specific
circumstances under which a trial court may single out a particular item of evidence
in the jury instruction without signaling to the jury an impermissible view of the
10
weight (or lack thereof) of that evidence.” Bartlett, 270 S.W.3d at 151. These three
circumstances are when:
1) the law directs the jury to attach “a certain degree of weight” or only a
particular or limited significance to a specific category or item of
evidence;
2) the law specifically identifies particular evidence as a predicate fact
from which a jury may presume the existence of an ultimate or
elemental fact; and
3) the admissibility of the evidence is contingent upon predicate facts that
are for the jury to decide.
Id. Singling out evidence beyond these three circumstances may impinge on the
jury’s independence in its essential role as factfinder. Id. “In determining whether
an instruction is a comment on the weight of the evidence, we must consider the
court’s charge as a whole.” Delapaz v. State, 228 S.W.3d 183, 212 (Tex. App.—
Dallas 2007, pet. ref’d).
C. Error Analysis
Ali challenges the language in the jury instruction concerning the State’s
election of the act to rely on for a conviction. The instruction stated:
You are instructed to consider only the act elected by the State in
deciding the guilt or innocence of the defendant in this indictment. The
act elected by the State is the one described by Jenny Ira (pseudonym)
when she was in middle school and shared a bedroom with Amy Ira, in
which the defendant caused his hand to contact the breast of Jenny Ira
(pseudonym), while the defendant was sitting on her bed and
masturbating. Testimony concerning any other offenses alleged to have
been committed by the defendant, if any, may not be considered for any
purpose whatsoever, unless those other offenses, if any, meet all the
requirements set out below in Paragraph V.
11
(Emphasis added.) Ali concedes that election language was necessary in the charge
in this case “to ensure jury unanimity” in reaching a verdict. He argues, however,
that the omission of any qualifying language, such as “alleged,” indicating that the
evidence was only an allegation, constituted an improper comment on the weight of
the evidence. Ali also argues that the omission of language qualifying the testimony
was highlighted by the very next sentence, which used two qualifiers when
addressing testimony about extraneous offenses.
A felony criminal conviction requires a unanimous verdict. TEX. CONST.
art. V, § 13; TEX. CODE CRIM. PROC. art. 36.29(a); Ngo, 175 S.W.3d at 745.
“Unanimity in this context means that each and every juror agrees that the defendant
committed the same, single, specific criminal act.” Ngo, 175 S.W.3d at 745; see de
la Luz Torres v. State, 570 S.W.3d 874, 880 (Tex. App.—Houston [1st Dist.] 2018,
pet. ref’d) (stating that unanimous verdict “means that the jury must agree upon a
single and discrete incident that would constitute the commission of the offense
alleged”); Francis v. State, 36 S.W.3d 121, 125 (Tex. Crim. App. 2000) (op. on
reh’g) (stating that unanimous jury verdict “ensures that the jury agrees on the factual
elements underlying an offense” and is “more than mere agreement on a violation of
a statute”).
“A non-unanimous verdict can occur when the State charges one offense and
presents evidence that the defendant committed that offense on multiple separate
12
occasions.” de la Luz Torres, 570 S.W.3d at 880. In a trial for a sexual offense, where
one act is alleged in an indictment and more than one act is shown by the evidence
to constitute a felony offense, the State must typically elect the act upon which it
will rely for a conviction. Garcia v. State, 614 S.W.3d 749, 753 (Tex. Crim. App.
2019); O’Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988). This election
requirement serves four purposes: (1) to protect the accused from the introduction
of extraneous offenses; (2) to minimize the risk that the jury might choose to convict
not because one or more crimes were proved beyond a reasonable doubt but because
all of them together convinced the jury that the defendant was guilty; (3) to ensure
unanimous verdicts on one specific incident; and (4) to give the defendant notice of
the particular offense the State intends to rely upon for prosecution and afford the
defendant an opportunity to defend against the charges. Phillips v. State, 130 S.W.3d
343, 349 (Tex. App.—Houston [14th Dist.] 2004), aff’d, 193 S.W.3d 904 (Tex.
Crim. App. 2006) (citing Fisher v. State, 33 Tex. 792, 794 (1870), Francis, 36
S.W.3d at 123–25, and O’Neal, 746 S.W.2d at 772–73).
The parties do not dispute that it was necessary to single out Jenny’s testimony
in the jury charge to inform the jury of the allegation that the State elected to proceed
upon for this charged offense. See Castro v. State, No. 03-19-00882-CR, 2021 WL
6141560, at *5 (Tex. App.—Austin Dec. 30, 2021, pet. ref’d) (mem. op., not
designated for publication) (“Although election language does not fall within the
13
categories enumerated in Bartlett, it is consistent with the Court of Criminal
Appeals’ objective in demarcating the exceptions” to commenting on weight of
evidence). We therefore assume without deciding that election language can be a
fourth circumstance in which a jury charge may permissibly single out evidence
without improperly commenting on that evidence. See Bartlett, 270 S.W.3d at 151.
The issue is whether the omission of a modifying term, such as “alleged,” when
referring to Jenny’s testimony rendered the reference an impermissible comment on
the weight of the evidence.
Ali relies primarily on Castro to argue that “[s]imilar language that simply
referred to specific testimony of the complainant but failed to include any qualifiers,
such as ‘alleged,’ has been found to be error.” In Castro, a defendant was convicted
of seven counts of indecency with a child by sexual contact and two counts of sexual
assault of a child. See 2021 WL 6141560, at *1. The jury charge identified each
count of indecency with a child by the relevant testimony of the complainant. Id. For
example, one count stated, “This count refers to the testimony of M.C. regarding
breast touching in the small house.” Id. at *1 n.2. The defendant argued that the
inclusion of election language in the charge constituted an improper comment on the
weight of the evidence, in part because it omitted the term “alleged” as a modifier
of the conduct. Id. at *4, 6. The court noted that the charge included the qualifying
term “regarding” or “in regards to,” although it did not consider whether such terms
14
were necessary. Id. at *6. Nevertheless, the court concluded that the election
language constituted an improper comment on the weight of the evidence not
because it omitted a modifier but because it “explicitly and repeatedly referr[ed] to
the testimony of the complainant—the sole witness to testify about the facts
underlying the charges,” and the trial court therefore “influenced the State’s burden
and engaged in the very conduct proscribed by Article 36.14.” Id.
Thus, Castro did not hold that it was error to simply refer to specific testimony
in jury charge election language without a qualifying term. The error in Castro was
the explicit and repeated references to the evidence in the jury charge, not the
omission of a qualifying term. Therefore, Castro does not support Ali’s argument.
Ali also relies on Vickery v. State, in which the defendant challenged the
following election language in a jury charge:
The State has elected to proceed on the conduct described by [J.D.T.]
as the first time the defendant is alleged to have touched the genitals of
[J.D.T.] by grabbing them with his hand occurring while [J.D.T.]
resided at the residence on Jet Street and was 8 or 9 years of age.
See No. 02-04-00422-CR, 2005 WL 2244730, at *6 (Tex. App.—Fort Worth 2005,
pet. ref’d) (per curiam) (mem. op., not designated for publication). The defendant
argued that this language impermissibly commented on the weight of the evidence
because it stated that the “the conduct . . . occur[red]” rather than “the conduct, if
any, . . . which allegedly occurred.” Id. The court disagreed, stating that the
challenged sentence included the modifying term “alleged,” which acted “as a
15
modifier of the entire descriptive phrase—the ‘conduct’ to which J.D.T. testified.”
Id. Vickery did not consider whether the election language required the use of a
modifier or whether the language without the modifier would have constituted an
impermissible comment on the weight of the evidence. Id. At best, Vickery supports
an argument that modifying terms can cure otherwise improper election language.
Because the opinion does not address the issue presented here, Vickery offers little
guidance in this case.
The State relies on Hathorn v. State to argue that the omission of modifying
terms “alleged” and “if any” does not render a jury instruction an improper comment
on the weight of the evidence. See 848 S.W.2d 101 (Tex. Crim. App. 1992). There,
the defendant was charged with capital murder for killing his father and other family
members for remuneration, specifically an early inheritance from his father’s estate.
Id. at 105–06, 113–14. The jury charge referred to the estate without describing it as
an alleged estate, which the defendant argued impermissibly commented on the
weight of the evidence because it assumed the existence of the estate. Id. at 113. The
challenged portion of the charge read:
Now if you believe from the evidence beyond a reasonable doubt that
the defendant, Gene Wilford Hathorn, Junior, on or about the ninth day
of October, 1984, in Trinity County, Texas, did intentionally cause the
death of an individual, Gene Hathorn, Sr., by shooting him with a gun
and you further find that said Gene Wilford Hathorn, Junior, did cause
the death of Gene Hathorn, Sr., for the promise of remuneration, to wit:
The Estate of Gene Hathorn, Sr., then you will find the defendant, Gene
16
Wilford Hathorn, Junior, guilty of capital murder as charged in Count 2
of the indictment.
Id. at 113–14. The Court of Criminal Appeals concluded that the reference to the
father’s estate was not a comment on the weight of the evidence at all. Id. at 114.
The court reasoned that remuneration was an element of the charged capital murder
offense, and therefore the reference to the estate in the jury charge was intended to
request a finding on whether the State proved a necessary element of the offense. Id.Because the reference to the estate was not an impermissible comment on the weight
of the evidence, it was unnecessary to include the modifying terms “alleged” or “if
any” in the instruction. Id. In a partially unpublished opinion, this Court has
interpreted Hathorn as implying that, “had the charge been a comment on the weight
of the evidence, the inclusion of the words ‘if any’ would have cured the error.” Blok
v. State, 986 S.W.2d 389, 391 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (op.
on reh’g) (citing Hathorn, 848 S.W.2d at 114); see also Mattox v. State, 874 S.W.2d
929, 933–34 (Tex. App.—Houston [1st Dist.] 1994, no writ) (concluding that use of
term “aggravated assault” in charge without any word of limitation, such as “if any,”
constituted impermissible comment on weight of evidence under article 36.14).
In this case, the election language specifically referenced Jenny’s testimony
without any modifying terms such as “alleged.” Although the allegations are
prefaced as Jenny’s testimony, the allegations read as if they affirmatively occurred:
“[Ali] caused his hand to contact the breast of Jenny Ira (pseudonym), while [Ali]
17
was sitting on her bed and masturbating.” This language called attention to particular
evidence: Jenny’s testimony. But “[e]ven a judge’s innocent attempt to provide
clarity for the jury by including a neutral instruction can result in an impermissible
comment on the weight of the evidence because the instruction singles out a
particular piece of evidence for special attention, which the jury may then focus on
as guidance from the judge.” Beltran De La Torre, 583 S.W.3d at 617 (quotations
omitted).
Moreover, these facts are the only facts referenced in the entire jury charge.
See Delapaz, 228 S.W.3d at 212 (stating that reviewing court considers charge as
whole in determining whether particular instruction is comment on evidence). Even
if inclusion of the language was an innocent and necessary attempt to clarify the
State’s elected act, the jury reasonably could have interpreted the singling out of this
sole evidence without any modifying language as guidance from the judge in
reaching a verdict. See Beltran De La Torre, 583 S.W.3d at 617; Joung Youn Kim v.
State, 331 S.W.3d 156, 160 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d)
(plurality op.) (stating that trial judge improperly comments on weight of evidence
by making statement that implies approval of State’s argument, indicates disbelief
in defensive position, or diminishes credibility of defensive strategy). Under the
circumstances presented in this case, we agree that the trial court erred by referring
18
to the elected act without a modifying term such as “alleged.” See Beltran De La
Torre, 583 S.W.3d at 617; Blok, 986 S.W.2d at 391; Mattox, 874 S.W.2d at 933–34.
D. Harm Analysis
Although error exists in the jury charge, we disagree that the error caused Ali
egregious harm. See Gonzalez, 610 S.W.3d at 27 (stating that unpreserved jury
charge error is reversible only if it caused “egregious harm”). To result in egregious
harm, an error must affect “the very basis of the case,” “deprive the defendant of a
valuable right,” or “vitally affect a defensive theory.” Id. (quoting Ngo, 175 S.W.3d
at 750). The appellant must have suffered actual harm, not merely theoretical harm.
Id. “Egregious harm is a ‘high and difficult standard’ to meet, and such a
determination must be ‘borne out by the trial record.’” Villarreal v. State, 453
S.W.3d 429, 433 (Tex. Crim. App. 2015) (quoting Reeves v. State, 420 S.W.3d 812,
816 (Tex. Crim. App. 2013)).
In determining whether egregious harm is present, we review the entire record
and consider four factors: the entirety of the charge, the state of the evidence, the
arguments to the jury, and any other relevant information. Gonzalez, 610 S.W.3d at
27; French, 563 S.W.3d at 235–36. In some circumstances, a single consideration
may suffice to establish that the risk of harm is so minimal that the harm is not
egregious. Gonzalez, 610 S.W.3d at 27. Our analysis is fact specific and conducted
19
on a case-by-case basis. Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App.
2015).
1. Entirety of the Charge
Ali’s argument on appeal focuses solely on the inclusion of the erroneous
unmodified election language in the jury charge, which Ali contends “related to the
only contested issue of fact at trial”: whether the incident occurred. The State
responds that this was not a contested issue because the only contradictory evidence
presented at trial was Ali’s statement that the incident was a misunderstanding.
Further, the State argues that it was necessary to include the election language in the
jury charge, and the charge also instructed the jury that it was the sole factfinder,
including on issues of witness credibility and the weight to be given to witness
testimony.
The disputed election language in the charge contained the entire act elected
by the State for conviction in this case. Regardless of whether contradictory evidence
existed in the record, Ali pleaded not guilty to the charge, thereby putting the State
to its burden of proof. We agree with Ali that this language relates to the only dispute
at trial on this cause number: whether the elected incident occurred. Furthermore,
we note that these are the only facts referenced in the jury charge, which emphasizes
their presence.
20
Nevertheless, in the context of the entire jury charge, this factor weighs
against a finding of egregious harm. Each charged offense was contained in a
separate jury charge, and the jury charge in this case set forth the elements of the
offense of indecency with a child by sexual contact. The charge detailed the State’s
burden to prove the offense beyond a reasonable doubt. The charge also referred
generally to “the offense, if any,” that “is alleged in the indictment to have been
committed . . . .” Finally, the charge instructed the jurors that they were “the
exclusive judges of the facts proved, of the credibility of the witnesses, and of the
weight to be given to the testimony,” and that the jury was “bound to receive the law
from the Court.” Furthermore, in the preface to the paragraph concerning the State’s
elected act, the charge informed the jury that the “State has presented evidence of
more than one incident to prove the act alleged.”
The charge used modifying terms, as Ali argues it should have, just not when
specifically referring to Jenny’s testimony as the elected act. Thus, the jury charge
as a whole properly instructed the jury that the State had the burden to prove its
allegations, which significantly minimizes the effect of omitting modifying terms in
the election language specifically. This factor weighs heavily in favor of a finding
that Ali was not egregiously harmed by the jury charge. See Gonzalez, 610 S.W.3d
at 27 (stating that “a single consideration may persuade us that the risk of harm is so
minimal that it precludes a finding of egregious harm”).
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2. State of the Evidence
Under this factor, we consider the state of the evidence to determine whether
the evidence made it more or less likely that the jury charge caused actual harm.
Arrington, 451 S.W.3d at 841. Ali argues that the only evidence of the offense in
this case was Jenny’s testimony, a “specific portion” of which was emphasized in
the jury charge. The State responds that other evidence of this offense exists in the
record, including testimony from Amy, who shared a bedroom with Jenny, about
similar acts Ali committed against her. The State also points to a transcript of a
telephone conversation between Jenny and Ali in which Ali agreed to stop touching
Jenny and her sisters, did not accuse Jenny of lying, and did not deny the accusations.
At trial, Jenny testified about a time when Ali came into her and Amy’s shared
bedroom in the middle of the night, sat on her bed, and masturbated while touching
her inappropriately over her clothes. Jenny testified that she knew it was Ali because
of his clothing. The State also introduced and played the recording of the telephone
conversation between Jenny and Ali, in which Jenny repeatedly pressed Ali to
acknowledge and apologize for inappropriately touching her and her sisters. Ali
raised suspicions that others were listening in on the phone call. He repeatedly
apologized, but his apologies were ambiguous. For example, he would say, “I say
everything sorry. Everything. If I—if I hit you and if I—I touch you like, . . .
something wrong. All—all of this, I’m sorry.” He even denied touching “anybody”
22
at one point. But Ali did respond “Yes” when Jenny asked him, “So, you promise to
stop touching us, right?” At the end of the conversation, Ali said, “I say I promise
God willing. . . . I promise I stop everything. I all [sic] mistake. I will stop[.]”
On the recording, Ali did not unequivocally admit to touching any of the Ira
sisters inappropriately, and he certainly did not unequivocally admit to masturbating
while touching Jenny in her bedroom at night, which is part of the State’s elected
act. Nevertheless, the jury charge informed the jury that it was the sole factfinder,
and the jury reasonably could have concluded from the audio recording that Ali
admitted to some inappropriate touching. See Williams v. State, 235 S.W.3d 742,
750 (Tex. Crim. App. 2007) (stating that reviewing court may not reevaluate weight
and credibility of evidence and thereby substitute court’s judgment for that of
factfinder); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (stating that
reviewing court must give deference to “the responsibility of the trier of fact to fairly
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts”) (quoting Jackson v. Virginia, 443 U.S.
307, 318–19 (1979)). Because evidence of the offense other than Jenny’s testimony
existed, it is less likely that the reference to Jenny’s testimony in the charge actually
caused Ali harm. See Arrington, 451 S.W.3d at 841.
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3. Arguments to the Jury
Ali argues that the State argued to the jury that all of the acts about which
Jenny testified would support a conviction for the offense, despite the State’s
election, and the State incorrectly argued that the elected act occurred in the summer
between Jenny’s fifth and sixth grade years rather than “throughout middle and high
school years.” Ali further argues that the State confused the various incidents by
arguing that Jenny knew it was Ali touching her because he had done other similar
acts. According to Ali, the State’s arguments made it “impossible for the jury to
parse out that the court’s instruction referred simply to an allegation and not the
court’s opinion regarding the truthfulness of the testimony.”
Under this factor, we consider whether any statements made by the State, Ali,
or the court during trial exacerbated or ameliorated error in the charge. See id. at
843; Ngo, 175 S.W.3d at 750–52 (finding egregious harm when jury charge did not
contain unanimity instruction and trial judge and prosecutor repeatedly told jury that
verdict need not be unanimous). We disagree that the State’s challenged arguments
exacerbated the comment in the jury charge. Initially, we note that Ali’s primary
argument is that the trial court erred by impermissibly commenting on the weight of
the evidence in the jury charge, yet Ali relies solely on the State’s arguments under
this factor. We do not agree that these arguments by the State exacerbated any
perception by the jury of the court’s view of the evidence.
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To the contrary, as the State points out, the charge instructed the jury on
extraneous offenses and the limited purposes for which the jury may consider acts
other than the elected act. Our review of the appellate record does not reveal any
argument that exacerbated or ameliorated the challenged election language in the
charge. See Arrington, 451 S.W.3d at 843. Thus, this factor is neutral.
4. Other Relevant Information
Ali argues that he was tried for three separate offenses in a single trial, which
imposed upon the jury the “unenviable task” of delineating the evidence that
properly could be considered for each charge from the evidence of extraneous
offenses and the purposes for which such evidence could be considered. According
to Ali, referring to Jenny’s testimony in the charge lessened the State’s burden of
proof and confused the jury.
Although the jury’s task was complicated by having to consider three separate
offenses in a single trial and having to parse through the evidence and consider it for
certain purposes—either as evidence of a specific charged offense or evidence of an
extraneous offense—we disagree that this factor supports a finding of egregious
harm. The charge explained the meaning of extraneous offense evidence and
clarified the uses for which it could be considered. The election language also
clarified the difference in the types of evidence that the jury properly could consider.
Thus, the other relevant information relied upon by Ali does not support his
25
argument that he suffered egregious harm due to the trial court’s impermissible
comment on the weight of the evidence.
Based on our review of the entire record and consideration of these factors,
we conclude that the charge error did not cause Ali egregious harm. See Gonzalez,
610 S.W.3d at 27. We overrule Ali’s sole’s issue in appellate cause number 01-21-
00604-CR.
Anders Procedures
In appellate cause numbers 01-21-00605-CR and 01-21-00607-CR, Ali’s
appointed counsel on appeal has filed a motion to withdraw, along with a brief
stating that the records in these two appeals present no reversible error and, therefore,
these two appeals are without merit and are frivolous. See Anders v. California, 386
U.S. 738 (1967). The State filed a letter brief waiving its right to file an appellate
brief in these two appeals.
Counsel’s brief meets the Anders requirements by presenting a professional
evaluation of the appellate records and including references to the records and to
legal authority. See id. at 744–45; see also High v. State, 573 S.W.2d 807, 812, 813
(Tex. Crim. App. 1978). Counsel indicates that she has thoroughly reviewed the
records in these two appeals and is unable to advance any ground of error in either
appeal that warrants reversal. See Anders, 386 U.S. at 744; Mitchell v. State, 193
S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
26
Counsel mailed a copy of the motion to withdraw and the Anders brief to Ali
and informed him of his right to file a response and to access the appellate records.
See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008) (orig. proceeding).
Ali did not request access to the appellate records or file a pro se response in either
appeal. See id. at 408–09.
The Court has independently reviewed the records in these two appeals, and
we conclude that no reversible error exists in the record in either appeal, there are
no arguable grounds for review in either appeal, and the two appeals are frivolous.
See Anders, 386 U.S. at 744 (emphasizing that reviewing court—and not counsel—
determines, after full examination of proceedings, whether appeal is wholly
frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing
court must determine whether arguable grounds for review exist); Bledsoe v. State,
178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (reviewing court is not to address
merits of each claim raised in Anders brief or pro se response after determining there
are no arguable grounds for review); Mitchell, 193 S.W.3d at 155–56. An appellant
may challenge a holding that there are no arguable grounds for appeal by filing a
petition for discretionary review in the Texas Court of Criminal Appeals. See
Bledsoe, 178 S.W.3d at 827 & n.6.
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Conclusion
The Court affirms the judgment of the trial court in these three appeals. See
TEX. R. APP. P. 43.2(a). The Court further grants counsel’s motion to withdraw in
appellate cause numbers 01-21-00605-CR and 01-21-00607-CR.6 Attorney Mandy
Miller must immediately send the required notice and file a copy of the notice with
the Clerk of this Court. See TEX. R. APP. P. 6.5(c). We dismiss any other pending
motions as moot.
April L. Farris
Justice
Panel consists of Justices Kelly, Landau, and Farris.
Do not publish. TEX. R. APP. P. 47.2(b).
6
Appointed counsel still has a duty to inform Ali of the result of these appeals and
that he may, on his own, pursue discretionary review in the Texas Court of Criminal
Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).
28