Chance Douglas Bolen v. State
478 S.W.3d 865
| Tex. App. | 2015Background
- Appellant Chance Bolen was indicted under Tex. Penal Code §21.02(b) for continuous sexual abuse of a young child, alleged as inducing S.M. to masturbate.
- Victim S.M. testified to multiple incidents over several years in different residences; testimony also described other sexual acts (vaginal/anal sex, exposure, photos).
- At the charge conference Bolen objected to the unanimity instruction on general constitutional grounds, arguing the statute/charge did not require jurors to agree on specific acts, dates, or times.
- The trial court overruled the objection; the jury convicted Bolen and assessed life imprisonment; the foreman confirmed the verdict was unanimous.
- On appeal Bolen argued the jury charge improperly defined "sexual conduct" so jurors could convict based on extraneous acts not alleged in the indictment (i.e., acts other than inducing masturbation).
- The court assumed, without deciding, the abstract portion of the charge might be erroneous but concluded any error did not cause reversible (egregious) harm because the application paragraph limited the jury to the acts alleged in the indictment.
Issues
| Issue | Appellant's Argument | State's Argument | Held |
|---|---|---|---|
| Whether jury charge violated unanimity by including statutory definitions that could permit conviction for acts not alleged in indictment | Charge allowed conviction for extraneous sexual acts; required limiting instruction to the indicted act (inducing masturbation) | Application paragraph limited jurors to indicted acts; any abstract error harmless/non-egregious | Error, if any, not egregious because application paragraph properly confined jury to acts alleged in indictment; judgment affirmed |
Key Cases Cited
- Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (standards for reviewing jury-charge error and harm analysis)
- Villarreal v. State, 453 S.W.3d 429 (Tex. Crim. App. 2015) (preservation impacts required degree of harm)
- Yzaguirre v. State, 394 S.W.3d 526 (Tex. Crim. App. 2013) (focus on application paragraph when assessing charge expansion)
- Medina v. State, 7 S.W.3d 633 (Tex. Crim. App. 1999) (error in abstract portion not egregious when application paragraph is correct)
- Patrick v. State, 906 S.W.2d 481 (Tex. Crim. App. 1995) (same principle regarding application paragraph limiting jury)