Lovell v. State
| Docket Number | 11-22-00099-CR |
| Decision Date | 03 August 2023 |
| Parties | ROBERT LAFAYETTE LOVELL, Appellant v. THE STATE OF TEXAS, ` |
| Court | Texas Court of Appeals |
Do not publish. See Tex.R.App.P. 47.2(b).
On Appeal from the 90th District Court Stephens County, Texas Trial Court Cause No. F36096
Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.
The jury convicted Appellant, Robert Lafayette Lovell, of the offense of continuous sexual abuse of a child under fourteen years of age, a first-degree felony. Tex. Penal Code Ann § 21.02(b)(1), (b)(2)(A), (h) (West Supp. 2022). Appellant elected for the trial court to assess his punishment. Based on Appellant's pleas of "true" to two enhancement allegations, the trial court found each enhancement to be "true" and assessed Appellant's punishment at life imprisonment in the Texas Department of Criminal Justice, Institutional Division. See id. § 21.02(h). In two issues, Appellant contends that (1) the trial court's charge contained error that resulted in egregious harm to Appellant, and (2) the trial court abused its discretion when it admitted certain evidence over Appellant's objection. We affirm.
The victim[1] testified that Appellant frequently sexually abused her from around the time she was nine years old until she outcried to her aunt and mother when she was eleven. After the victim outcried, her mother contacted the police; the victim was later examined by a sexual assault nurse examiner (SANE). After law enforcement concluded its investigation, Appellant was arrested and subsequently indicted for continuous sexual abuse of a child.
At trial, Appellant objected to a portion of the victim's testimony-in which she recounted a time when Appellant picked her up in his vehicle while he was intoxicated and proceeded to crash the vehicle into a wall-on the basis that the victim's testimony about this incident was irrelevant and did not constitute same-transaction contextual evidence. The trial court overruled Appellant's objection.
Appellate review of alleged charge error is a two-step process. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012) (citing Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994)). First, we must determine whether charge error exists. Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015) (citing Kirsch, 357 S.W.3d at 649). Second, if error does exist, we must then conduct a harm analysis to determine whether the error resulted in sufficient harm to warrant reversal. Id.; Phillips v. State, 463 S.W.3d 59, 64-65 (Tex. Crim. App. 2015); Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005); Ybarra v. State, 621 S.W.3d 371, 384 (Tex. App.-Eastland 2021, pet. ref'd).
Although "the jury is the exclusive judge of the facts," it is "bound to receive the law from the court and be governed thereby." Tex. Code Crim. Proc. Ann. art. 36.13 (West 2007). The purpose of the trial court's charge is to "inform the jury of the applicable law and guide them in its application to the case." Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007) (quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996)). Charge error stems from the denial of a defendant's right to have the trial court provide the jury with instructions that correctly set forth the "law applicable to the case." Bell v. State, 635 S.W.3d 641, 645 (Tex. Crim. App. 2021) (quoting Crim. Proc. art. 36.14). Because the trial court is obligated to correctly instruct the jury on the law applicable to the case, it is ultimately responsible for the accuracy of its charge and the accompanying instructions. Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018) (citing Delgado, 235 S.W.3d at 249). Therefore, when the charge is inaccurate, the trial court errs, and the error is subject to a harm analysis. See Bell, 635 S.W.3d at 645.
A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019); Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). This standard also applies to a trial court's decision to admit or exclude extraneous-offense evidence. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); Barron v. State, 630 S.W.3d 392, 410 (Tex. App.-Eastland 2021, pet. ref'd). We will not reverse a trial court's decision to admit or exclude evidence, and there is no abuse of discretion, unless that decision lies outside the zone of reasonable disagreement. Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018); De La Paz, 279 S.W.3d at 343-44; Barron, 630 S.W.3d at 410. Furthermore, we will uphold a trial court's evidentiary ruling, even if the trial court's reasoning is flawed, if it is correct on any theory of law that finds support in the record and is applicable to the case. Henley, 493 S.W.3d at 93; Dering v. State, 465 S.W.3d 668, 670 (Tex. App.- Eastland 2015, no pet.).
In the application portion of its charge, the trial court included a recitation of the statutory definition of indecency with a child by contact which stated, among other things, that the offense may be committed if the defendant touched the breast of a child. Appellant complains that the inclusion of this language was error because it served to confuse the jury with respect to the permissible manner and means for how this offense could be a predicate offense of continuous sexual abuse of a child.
A person commits the offense of continuous sexual abuse of a child if, during a period that is thirty or more days in duration, the person commits two or more acts of sexual abuse and, at the time of the commission of each of the acts of sexual abuse, the actor is seventeen years of age or older and the victim is a child younger than fourteen years of age, regardless of whether the actor knows the age of the victim at the time the offense is committed. See Penal § 21.02(b).
For purposes of Section 21.01, the statutory definition of an "act of sexual abuse" includes the offense of indecency with a child, "if the actor committed the offense in a manner other than by touching, including touching through the clothing, the breast of a child." Id. § 21.02(c)(2) (emphasis added); see id. § 21.11(a)(1) (West 2019). To convict a defendant of the offense of continuous sexual abuse of a child, a jury is not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant. Id. § 21.02(d). Rather, the jury must only agree that the defendant, during a period that is thirty or more days in duration, committed two or more statutorily defined acts of sexual abuse. Id.
A person commits the offense of indecency with a child by contact if the person engages in sexual contact with a child who is younger than seventeen. See id. § 21.11(a)(1). Section 21.11 defines "sexual contact" as (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." See id. § 21.11(c).
Here the trial court's charge recited the statutory definition of the offense of indecency with a child by contact-including that the offense may be committed by touching the victim's breast-in...
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