Turner v. State

• Decision Date: 09 June 2021
• Docket Number: No. 05-19-01328-CR,05-19-01328-CR
• Citation: 626 S.W.3d 88
• Court: Texas Court of Appeals
• Parties: Jerry Lynn TURNER, Appellant v. The STATE of Texas, Appellee

626 S.W.3d 88

Jerry Lynn TURNER, Appellant

v.The STATE of Texas, Appellee

No. 05-19-01328-CR

Court of Appeals of Texas, Dallas.

Opinion Filed June 9, 2021

Karla Baugh, Paris, James Brett Smith, San Antonio, for Appellee.

Christie Merchant, Longview, for Appellant.

Before Justices Partida-Kipness, Pedersen, III, and Goldstein

OPINION

Opinion by Justice Pedersen, III A jury found appellant Jerry Lynn Turner guilty of continuous sexual abuse of a child under fourteen years of age. The trial court assessed his punishment at fifty years' confinement and a $1,000 fine. Appellant raises five issues, including a request for us to modify the judgment to correct several clerical errors. As modified, we affirm the trial court's judgment.

I. BACKGROUND

This case involves two sisters under fourteen years of age: M.R.S. and M.F.S. Appellant is the step-grandfather of the children, married to the girls' maternal grandmother ("Grandmother"). On the evening of May 16, 2018, then five-year-old M.R.S. was spending the night at her Grandmother's one-bedroom residence. Grandmother, appellant, and M.R.S. were the only people in the residence that evening. At about 11:30 p.m., Grandmother placed M.R.S. on a cot that was in the bedroom. Grandmother fell asleep on the bed in the bedroom. Fifteen minutes later, Grandmother awoke and saw she was alone. Grandmother had a "strange feeling" and got up to check the living room.

Grandmother entered the living room and saw appellant seated with M.R.S.'s pelvic region in his lap. M.R.S. was face up; her gown was pulled up; and her shorts and underwear were pulled down to her knees. Appellant's pointer and middle finger on his right hand were bent, touching M.R.S.'s vagina. M.R.S. moved her arms down in an attempt to push appellant away and stated, "No, stop, it hurts my tummy." Grandmother intervened and moved M.R.S. into the bedroom. Grandmother confronted appellant in the living room. Appellant threatened that he would commit suicide if Grandmother called the police. Grandmother responded she was going to call the police. Appellant took his insulin and a needle, and he left the residence.¹ Grandmother called the police.

Detective Tyler Halter arrived at about 1:30 a.m. and arranged for M.R.S. to undergo a sexual assault exam at a hospital at 3:00 a.m. Grandmother, M.R.S., the children's mother ("Mother"), and Detective Halter traveled to the hospital's emergency room. When they arrived, Detective Halter saw appellant was seated in the waiting room of the emergency room. Detective Halter separated Grandmother, M.R.S., and Mother from appellant. Detective Halter spoke with appellant while M.R.S. underwent her sexual assault exam. The exam showed M.R.S. had "tenderness on the left clitoral hood," which was consistent with digital penetration. Appellant was arrested in May 2018.

On March 8, 2019, then seven-year-old M.F.S. made an outcry of sexual abuse to forensic interviewer Melisa Harris at the Grayson County Child Advocacy Center. M.F.S. reported that appellant had touched her vagina with his penis. M.F.S. identified appellant as the person who touched the outside and inside of her vagina. M.F.S. identified that appellant touched her butt. M.F.S. described appellant's penis and "white stuff coming out of his penis." M.F.S. explained there were several sexual assaults, which occurred at different places and times, including when appellant lived with her family in a house on Carr Street and when appellant and Grandmother lived at the Sherman Inn. The girls' mother testified that appellant lived with the family on Carr Street until November 2015. Evidence further showed appellant lived at the Sherman Inn from November 27, 2017 until January 8, 2018.

Appellant was ultimately indicted on the offense of continuous sexual abuse of a child under the age of fourteen.² Appellant was tried, found guilty of that offense, and sentenced to fifty years in prison. This appeal followed.

II. ISSUES RAISED

Appellant raises five issues as follows:

1. Whether the evidence is legally sufficient to support a finding of guilt as it relates to paragraph 5 of Count 1.

2. Whether the trial court's charge erroneously allowed the jury to convict Appellant for conduct alleged to have occurred on only one day instead a [sic] period of thirty days or more and resulted in egregious harm.

3. Whether the trial court commented on the weight of the evidence by including a definition of "penetration" and resulted in egregious harm.

4. Whether the trial court erroneously omitted an instruction on voluntariness and resulted in egregious harm.

5. Whether clerical errors in the judgment must be corrected.

III. STANDARDS OF REVIEW

A. Legal Sufficiency

To evaluate the sufficiency of the evidence, we consider the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Acosta v. State , 429 S.W.3d 621, 624–25 (Tex. Crim. App. 2014) ; see also Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "This standard tasks the factfinder with resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts." Murray v. State , 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). Our duty is to ensure that the evidence presented supports the jury's verdict and that the State has presented a legally sufficient case of the offense charged. Montgomery v. State , 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). "[O]ur role is not to become a thirteenth juror," and we "may not re-evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the fact-finder." Dewberry v. State , 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), modified by Guidry v. State , 9 S.W.3d 133 (Tex. Crim. App. 1999).

B. Jury Charge Error

In Jennings v. State , the court of criminal appeals held that all jury charge errors, including errors or omissions in the verdict form, are cognizable on appeal despite a lack of objection in the trial court. 302 S.W.3d 306, 311 (Tex. Crim. App. 2010). We review a jury charge issue first to determine whether error exists; then we analyze any error for harm. Ngo v. State , 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If there was error and appellant objected to the error at trial, then only "some harm" is necessary to reverse the trial court's judgment. Mendoza v. State , 349 S.W.3d 273, 278 (Tex. App.—Dallas 2011, pet. ref'd) (citing Jimenez v. State , 32 S.W.3d 233, 237 (Tex. Crim. App. 2000) ); see also Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). If, as in this case, the defendant failed to object at trial, then the defendant will obtain a reversal only if the error was " ‘so egregious and created such harm that defendant has not had a fair and impartial trial’ "—in short, egregious harm. Keller v. State , 604 S.W.3d 214, 229 (Tex. App.—Dallas 2020, pet. ref'd) (quoting Barrios v. State , 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing Almanza , 686 S.W.2d at 171 )).

Egregious harm is the type and degree of harm that (i) affects the very basis of the case, (ii) deprives the defendant of a valuable right, or (iii) vitally affects a defense theory. Allen v. State , 253 S.W.3d 260, 264 (Tex. Crim. App. 2008). In determining whether there was egregious harm, "the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information [revealed] by the record of the trial as a whole." Trejo v. State , 280 S.W.3d 258, 261 (Tex. Crim. App. 2009) (quoting Almanza , 686 S.W.2d at 171 ). Egregious harm is a difficult standard to meet and must be determined on a case-by-case basis. Ellison v. State , 86 S.W.3d 226, 227 (Tex. Crim. App. 2002).

IV. DISCUSSION

Issue One: Whether the evidence is legally sufficient to support a finding of guilt as it relates to paragraph 5 of Count 1

Regarding the offense of continuous sexual abuse of young child or children, the relevant portions of Texas Penal Code § 21.02 state:

(b) A person commits an offense if:

(1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and

(2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age, regardless of whether the actor knows the age of the victim at the time of the offense.

(c) For purposes of this section, "act of sexual abuse" means any act that is a violation of one or more of the following penal laws:

....

(2) indecency with a child under Section 21.11(a)(1),^[3] if the actor committed the offense in a manner other than by touching, including touching through clothing, the breast of a child;

....

(4) aggravated sexual assault under Section 22.021;

....

(d) If a jury is the trier of fact, members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. The jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse.

PENAL § 21.02(b) – (d) (footnote added). Count 1 of the jury charge contained six allegations of sexual abuse against appellant and read as follows:

[I]f you find from the evidence beyond a reasonable doubt that [appellant], did then and there, during a period that was 30 or more days in duration, namely from on or about the 3rd day of June, 2017, through on or about the 16th day of May, 2018, when the defendant was 17 years of age or older, commit two or more acts of sexual abuse against a child or children younger than 14 years of age, namely;

[1

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