Hodges, Charles Lee, PD-0258-15

Hodges, Charles Lee

PD-0258-15

Tex.

Apr 16, 2015

Check Treatment

Case Information

*1 PD-0258-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 4/15/2015 3:21:49 PM Accepted 4/16/2015 12:07:13 PM ABEL ACOSTA CAUSE NUMBER PD-0258-15 CLERK IN THE COURT OF CRIMINAL APPEALS OF TEXAS CHARLES LEE HODGES , Petitioner, vs.

THE STATE OF TEXAS , Respondent. SEEKING REVIEW OF THE ELEVENTH COURT OF APPEALS’ JUDGMENT AND

OPINION IN CAUSE NUMBER 02-13-00073-CR SECOND CORRECTED PETITION FOR

DISCRETIONARY REVIEW WM. REAGAN WYNN SBN: 00797708 KEARNEY | WYNN ONE MUSEUM PLACE 3100 WEST 7 TH STREET, SUITE 420 FORT WORTH, TEXAS 76107 (817) 336-5600 (817) 336-5610 (fax) rwynn@kearneywynn.com ORAL ARGUMENT IS REQUESTED ATTORNEY FOR PETITIONER

IDENTITY OF JUDGE, PARTIES, AND COUNSEL Hon. Everett Young, Judge Presiding of the 297 th Judicial The trial court judge:

District Court

The parties to the trial Charles Lee Hodges Defendant

court’s judgment are:

The State of Texas Prosecution Trial counsel were: Hon. Samuel W. Pettigrew, Jr. Defense Counsel

840 S. Carrier Parkway

Grand Prairie, Texas 75051

Hon. Lisa A. Callaghan Prosecutor Hon. Dawn N. Ferguson Prosecutor Tarrant County District Attorney’s Office 401 West Belknap

Fort Worth, Texas 76196

(817) 884-1400

Appellate counsel are: Wm. Reagan Wynn Appellant/Petitioner

Kearney | Wynn

One Museum Place

3100 West 7 th Street, Suite 420

Fort Worth, Texas 76107

(817) 336-5600

(817) 336-5610 (fax)

Hon. Edward L. Wilkinson State of Texas Tarrant County District Attorney’s Office Appellate Section

Address above

TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES, AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . i

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

QUESTION PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

REASONS FOR REVIEW, ARGUMENTS, AND AUTHORITIES . . . . . . . . . . . . . . 2

I. THE COURT OF APPEALS ERRED BY APPLYING THE ARTICLE

36.19/ ALMANZA EGREGIOUS HARM STANDARD RATHER THAN THE CONSTITUTIONAL ERROR RULE 44.2(a) HARMLESS BEYOND A REASONABLE DOUBT STANDARD TO THE TRIAL COURT’S FAILURE TO INFORM THE JURY OF THE STATE’S ELECTION OF THE SPECIFIC INSTANCE OF CONDUCT UPON WHICH IT WAS RELYING FOR CONVICTION AFTER THE DEFENSE REQUESTED THE ELECTION. . . . . . . . . . . . . . . . . . . 2 A. The Record Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. The Court of Appeals Opinion . . . . . . . . . . . . . . . . . . . . . . . . . 5 C. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION . . . 8

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Court of Appeals’ Opinion and Judgment . . . . . . . . . . . . . . . . . . . . . . . Appendix 1

Court of Appeals’ Order Denying Rehearing . . . . . . . . . . . . . . . . . . . . Appendix 2

iii

INDEX OF AUTHORITIES

Cases

Almanza v. State , 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g) . . . . . . 5

Cosio v. State , 353 S.W.3d 766 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . 5-7

Dixon v. State , 201 S.W.3d 731 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . . 6

Duffey v. State , 326 S.W.3d 627 (Tex. App.–Dallas 2009, no pet.) . . . . . . . . . . 5, 6

Hodges v. State , No. 02-13-00073-CR, 2014 WL 7204668 (Tex. App.–Fort Worth

December 18, 2014, no pet. h.) (mem. op., not designated for publication) . . viii, 2,

3, 5 Phillips v. State , 193 S.W.3d 904 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . 6

Reza v. State , 339 S.W.3d 706 (Tex App.–Fort Worth 2011, pet ref’d) . . . . . . . . . 5

Statutes and Rules

T EX . C ODE C RIM . P ROC . A NN . art. 36.19 (Vernon 2006) . . . . . . . . . . . . . . . . . . . . 5

T EX . R. A PP . P. 44.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

T EX . R. A PP . P. 66.3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

T EX . R. A PP . P. 66.3(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

T EX . R. A PP . P. 68.4(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS OF

TEXAS:

COMES NOW CHARLES LEE HODGES , Petitioner, by and through his

attorney of record, WM. REAGAN WYNN, and pursuant to Rule 68, Texas Rules of

Appellate Procedure, files this PETITION FOR DISCRETIONARY REVIEW , and

for such Petition would show this Court as follows:

STATEMENT REGARDING ORAL ARGUMENT This Petition challenges the court of appeals’ application of the egregious harm

standard set required for unobjected to jury charge error rather than the harmless

beyond a reasonable doubt standard applicable to errors implicating fundamental

Constitutional principles of unanimity and notice to a trial court’s total failure to

inform the jury of the specific conduct elected by the State to support a conviction.

The court of appeals’ decision in this case is in direct conflict with a decision from

another court of appeals and resolves an important issue of Texas law that has never

been directly resolved by this Court. Therefore, this Court should grant oral argument

so that counsel for both sides may more fully present their positions and answer any

questions this Court may have after preliminarily reviewing this case.

v *7 STATEMENT OF THE CASE Petitioner was convicted by a Tarrant County jury of one count of indecency

with a child by contact for touching the female sexual organ of his biological daughter

with his hand. Testimony was presented at trial concerning several alleged instances

of conduct that, if believed beyond a reasonable doubt, could have supported a

conviction for indecency with a child.

Outside the presence of the jury, counsel for the State “elected” to proceed with

the testimony concerning the “first time” the alleged injured party claimed Petitioner

touched her in this manner, i.e., a time when she was nine years old. However, the

jury was never informed of this “election” and the trial court took no action to limit

the jury’s consideration the specific instance elected by the State. The State conceded

that the trial court erred by failing to instruct the jury on the State’s election and the

court of appeals held that the trial court erred by failing to do so. However, the court

of appeals determined that the proper harm standard is the egregious harm standard

set out for unobjected to jury charge error and, applying that standard, held that the

error was harmless.

STATEMENT OF PROCEDURAL HISTORY By an indictment filed March 17, 2010, Petitioner was charged two counts of

indecency with a child alleged to have been committed on or about August 1, 2009,

against his biological daughter.[C.R. 6] Count One of the Indictment alleged that

Petitioner, acting with the intent to arouse and gratify his own sexual desire, engaged

in sexual contact by touching his daughter’s female sexual organ.[C.R. 6] Count Two

alleged that Petitioner, acting with the intent to arouse and gratify his own sexual

desire, engaged in sexual contact by touching his daughter’s breast.[C.R. 6]

On November 6, 2012, Petitioner appeared in court with his counsel, was

arraigned, and entered a plea of “not guilty” to both of the allegations in the

Indictment. [2 R.R. 6-8]

Thereafter, a jury was selected,[2 R.R. 16-237] seated,[6 R.R. 237] and

sworn.[6 R.R. 237] The Indictment was read in the presence of the jury and Petitioner

again entered pleas of “not guilty” to both of the allegations against him.[2 R.R. 245-

46]

Trial on the merits was conducted over two days from November 7-8, 2012.[3

R.R. 6-219; 4 R.R. 6-209] On November 9, 2012, the court gave the case to the

jury.[C.R. 89-82; 15 R.R. 90] On November 12, 2012, the jury returned verdicts of

“guilty” to the allegation in Count One of the Indictment and “not guilty” to the

allegation in Count Two of the Indictment.[6 R.R. 7; C.R. 93]

vii

The trial on punishment was conducted on January 22, 2013. After hearing

testimony and considering a Presentence Investigation Report, the trial court assessed

Petitioner’s punishment on Count One at incarceration for eight years .[7 R.R. 106]

The trial court entered its Judgment of Conviction by Jury in accordance with

the jury’s verdict on Count One on January 24, 2013.[C.R. 108-09] The trial court

entered its Judgment of Acquittal by Jury in accordance with the jury’s verdict on

Count Two on the same date.[C.R. 111] Petitioner timely filed his Notice of Appeal

on February 19, 2013.[C.R. 121-22]

The Second Court of Appeals affirmed the trial court’s judgment and sentence

on July 26, 2006. See Hodges v. State , No. 02-13-00073-CR, 2014 WL 7204668

(Tex. App.–Fort Worth December 18, 2014, no pet. h.) (mem. op., not designated for

publication). 1 After receiving two extensions of time, Petitioner timely filed his

Motion for Rearing on January 26, 2015. The Second Court of appeals denied the

Motion for Rehearing on February 5, 2015. 2

On March 10, 2015, this Court entered an order granting Petitioner’s First

Motion for Extension of Time to File Petition for Discretionary Review. Pursuant to

1 A copy of the Court of Appeals’ Opinion is attached to this Petition as

Appendix 1. See T EX . R. A PP . P. 68.4(i).

2 A copy of the Court of Appeals’ Order Denying Rehearing is attached to this

Petition as Appendix 2.

viii

the Order, this Petition was timely if filed in this Court on or before April 8, 2015.

Undersigned counsel timely submitted a Petition for Discretionary Review for filing

on April 8, 2015.

On April 15, 2015, this Court rejected the Petition for Discretionary Review

submitted by undersigned counsel because it failed to contain the identity of the trial

court judge as required by Rule 68.4(a), Texas. Rules of Appellate Procedure. This

Court directed that undersigned counsel had 10 days to tender a corrected Petition.

On April 15, 2015, undersigned counsel submitted a Corrected Petition for

Discretionary Review for filing, but subsequently discovered that he had failed to

attach the two appendices. This Second Corrected Petition for Discretionary Review

is now being submitted for filing on April 15, 2015.

ix *11 QUESTION PRESENTED FOR REVIEW Petitioner was convicted of one count of indecency with a child by contact, but testimony was presented of several separate incidents of

conduct alleged to have been committed by Petitioner against the alleged

injured party that could have supported conviction for that single count.

Petitioner’s trial counsel requested that the State be forced to elect a

specific instance of alleged conduct, the trial court purported to grant this

request, and, outside the presence of the jury, the State announced its

election. However, the election was erroneously never communicated

in any way to the jury. Did the court of appeals err by analyzing the

harm arising from this error under the egregious harm standard set

required for unobjected to jury charge error rather than the harmless

beyond a reasonable doubt standard applicable to errors implicating

fundamental Constitutional principles of unanimity and notice?

REASONS FOR REVIEW, ARGUMENTS, AND AUTHORITIES

THE COURT OF APPEALS ERRED BY APPLYING THE

ARTICLE 36.19/ ALMANZA EGREGIOUS HARM STANDARD

RATHER THAN THE CONSTITUTIONAL ERROR RULE 44.2(a)

HARMLESS BEYOND A REASONABLE DOUBT STANDARD

TO THE TRIAL COURT’S FAILURE TO INFORM THE JURY

OF THE STATE’S ELECTION OF THE SPECIFIC INSTANCE

OF CONDUCT UPON WHICH IT WAS RELYING FOR

CONVICTION AFTER THE DEFENSE REQUESTED THE

ELECTION.

A. The Record Below

Count One of the indictment alleged that, on or about August 1, 2009,

Petitioner, acting with the intent to arouse and gratify his own sexual desire, engaged

in sexual contact by touching the alleged injured party’s female sexual organ.[C.R. 6]

As set forth in the court of appeals’ opinion, at trial, the alleged injured party

testified that Petitioner touched her breasts and crotch “many times” starting when she

was “nine years old.”[3 R.R. 70-73] See Hodges , 2014 WL 7204668, at *2-3. Further,

the alleged injured party’s “outcry statement” described “multiple events” or “multiple

scenarios” of “touching.”[4 R.R. 174] See id. at *1. Finally, Petitioner described both

to the police Detective and during his trial testimony, a single event occurring during

his first weekend visitation with the alleged injured party in August 2009 (when she

would have been 11 years old, just about to turn 12) wherein she placed his hand in

her crotch area, but effectively explained that he had no intent to arouse or gratify his

sexual desire during the event. See id. at *4. In short, there was evidence presented

from several different sources indicating that multiple occurrences of the alleged

conduct – i.e., touching the alleged injured party’s female sexual organ – occurred.

The day before jury selection, Petitioner filed a Motion requesting that State be

required to elect “what offenses the State will rely on to convict on each count” of the

Indictment.[C.R. 65-66]

During a discussion outside the presence of the jury just prior to the State

calling its last rebuttal witness to testify, the trial court took up the issue of Petitioner’s

request that the State be required to “elect” and the following exchange occurred:

THE COURT: One other thing that was discussed, and this may be the

appropriate time to bring it up or put it on the record, [Petitioner’s trial

counsel], you had previously asked or inquired about the State making

an election on offenses; is that right?

[Petitioner’S TRIAL COUNSEL]: Yes, Your Honor.

THE COURT: You would still like to do that?

[Petitioner’S TRIAL COUNSEL]: Yes.

THE COURT: It’s my understanding that the State is going to make

some sort of election. I mean, are y’all prepared to do that at this time?

[STATE’S TRIAL COUNSEL]: Yes, Your Honor. The witness testified

that the first fondling offense and the first breast offense occurred in

2009 -- I'm sorry, occurred when she was nine years of age, and it

occurred on the couch at her father's house on Olympia Drive. The first

incident she described is the primary offense that we will be pursuing in

each count.

THE COURT: So will that be adequate for the defendant? For purposes

of double jeopardy or whatever, the State is relying upon the first alleged

incident of misconduct when she was nine years old, as I understand it

from the State. Is that correct?

[STATE’S TRIAL COUNSEL]: Yes, Your Honor.

THE COURT: And with that being placed on the record and I understand

the State will be then arguing that to the jury in its argument.

[STATE’S TRIAL COUNSEL]: Yes, Your Honor.

THE COURT: With that being placed on the record, will that be

adequate for the defense?

[Petitioner’S TRIAL COUNSEL]: Yes.

THE COURT: All right.

[4 R.R. 197-98]

This election was never mentioned, in any way, to the jury. There is no

mention of the State’s election in the Court’s written charge to the jury.[C.R. 89-92]

Further, review of the record reveals that the State’s election was never mentioned in

the presence of the jury. Petitioner’s counsel below made no objections to the court’s

charge.[5 R.R. 6]

B. The Court of Appeals’ Opinion

In his first point of error below, Petitioner argued that the trial court erred by

failing to limit the jury’s consideration to the particular act designated by the State as

the conduct that would support conviction for the offense alleged in count one of the

Indictment. The State conceded that the trial court erred by failing to instruct the jury

on the State’s election and the court of appeals held that the trial court erred by failing

to do so. See Hodges , 2014 WL 7204668, at *4. The court of appeals then

determined that the proper harm standard is the egregious harm standard set out for

unobjected to jury charge error 3 and, applying that standard, held that the error was

harmless. See id. at *5-6.

C. Analysis

In determining that the egregious harm standard for unobjected to jury charge

error applies to this particular error, the court of appeals relied on this Court’s decision

in Cosio v. State , 353 S.W.3d 766 (Tex. Crim. App. 2011) and their own prior

decision in Reza v. State , 339 S.W.3d 706 (Tex App.–Fort Worth 2011, pet ref’d).

The court of appeals’ decision in Reza is directly in conflict with the decision

of the Fifth Court of Appeals in Duffey v. State . See Duffey v. State , 326 S.W.3d 627,

3 See , e.g. , T EX . C ODE C RIM . P ROC . A NN . art. 36.19 (Vernon 2006); Almanza

v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).

631-32 (Tex. App.–Dallas 2009, no pet.). In Duffey , the court of appeals applied the

reasoning of this Court’s decisions in Phillips v. State , 193 S.W.3d 904 (Tex. Crim.

App. 2006), and Dixon v. State , 201 S.W.3d 731 (Tex. Crim. App. 2006), to hold that

for this exact type of error – failure to in any way instruct the jury on the State’s

election in a child sex case – is subject to Constitutional harm analysis under Rule

44.2(a), Texas Rules of Appellate Procedure, because the error implicates fundamental

Constitutional principles of unanimity and notice. See Duffey , 326 S.W.3d at 631-32.

Duffey has never been expressly overruled or disavowed by this Court. Petitioner

respectfully asserts that the court of appeals erred by evaluating the harm arising from

the trial court’s erroneous failure to instruct the jury on the State’s election under the

egregious harm standard and instead should have reversed the trial court’s judgment

unless it determined beyond a reasonable doubt that the error did not contribute to

Petitioner’s conviction. See Duffey , 326 S.W.3d at 632 (citing T EX . R. A PP . P.

44.2(a)).

Further, the facts underlying this Court’s decision in Cosio are distinguishable

from the facts in this case. Cosio was convicted of four separate counts of sexual

assault of/indecency by contact with a minor female. See Cosio , 353 S.W.3d at 769-

70. The evidence presented at trial was such that there were two different incidents

of conduct that could have satisfied the allegations in Count One, two different

incidents of conduct that could have satisfied the allegations in Count Two, and three

different incidents of conduct that could have satisfied the allegations in Counts Three

and Four. See id. at 770-71. Cosio’s attorney did NOT request that the State be

required to elect a specific instance of conduct for each specific count. See id. at 776-

77. Therefore, this Court determined that the error was purely a jury charge error for

failing to require jury unanimity – not for failing to implement the State’s election.

As such, Cosio does not directly address the situation in this case.

Under these circumstances, this Court should grant review in this matter to

settle an important open question of State law resolved by the court of appeals that has

not previously been addressed by this Court: does a trial court’s erroneous failure to

somehow instruct the jury on the State’s election of the specific conduct to support a

conviction amount to a Constitutional error reviewable under Rule 44.2(a) or is it

simply jury charge error reviewable under the article 36.19/ Almanza standard? See

T EX . R. A PP . P. 66.3(b). Further, this Court should grant review in this matter to

resolve the conflict between the Second Court of Appeals’ decisions in this case and

Reza and the Fifth Court of Appeals’ decision in Duffey . See T EX . R. A PP . P. 66.3(a).

PRAYER

WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully prays that

this Court will grant this Petition for Discretionary Review, order a full briefing of the

issues presented herein, and after considering the merits, reverse the judgment of the

court of appeals, remand this cause to the trial court for a new trial, and grant such

other and further relief as he may show himself deserving, at law and in equity.

Respectfully submitted, /s/ Wm. Reagan Wynn WM. REAGAN WYNN State Bar No. 00797708 KEARNEY | WYNN One Museum Place 3100 West 7 th Street, Suite 420 Fort Worth, Texas 76107 (817) 336-5600 (817) 336-5610 (fax) rwynn@kearneywynn.com ATTORNEY FOR PETITIONER CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION

I certify that this Petition was prepared with WordPerfect X5 using Times New

Roman 14 point font, and that, according to that program’s word-count function, the

sections covered by T EX . R. A PP . P. 9.4(i)(1) contain 1,466 words.

/s/ Wm. Reagan Wynn WM. REAGAN WYNN *19 CERTIFICATE OF SERVICE This is to certify that a copy of this Second Corrected Petition has been

forwarded to:

Edward L. Wilkinson

Tarrant County District Attorney’s Office

401 W. Belknap

Fort Worth, Texas 76196-0201

coaapellatealerts@tarrantcounty.com

Lisa C. McMinn

State Prosecuting Attorney

P.O. Box 12405

Austin, Texas 78711

on the 15 th day of April, 2015.

/s/ Wm. Reagan Wynn WM. REAGAN WYNN *20 APPENDIX 1

Hodges v. State, Not Reported in S.W.3d (2015)

2014 WL 7204668 II. FACTUAL AND PROCEDURAL BACKGROUND Only the Westlaw citation is currently available. Hodges dated and eventually lived with Sally 2 for several SEE TX R RAP RULE 47.2 FOR years beginning in 1994, and Sally became pregnant with

DESIGNATION AND SIGNING OF OPINIONS. Hodges's child during that time. Hodges and Sally separated before the child was born. Sally gave birth to Mary in MEMORANDUM OPINION September 1997; Hodges went to the hospital for the birth but

DO NOT PUBLISH TEX. R. APP. P. 47.2(B) had no further contact with Mary until she initiated contact Court of Appeals of Texas, with him 2004, when she was approximately six and a half or Fort Worth. seven years old.

Charles Lee Hodges, Appellant 2

v. To protect the anonymity of the child in this case, we will use aliases to refer to all individuals named herein The State of Texas, State with the exception of the appellant. See Tex.R.App. P. 9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1

NO. 02–13–00073–CR | (Tex.Crim.App. [Panel Op.] 1982). DELIVERED: December 18, 2014 | Hodges began having supervised visitations with Mary in

Rehearing Overruled February 5, 2015 2004. He was married to Lana by that time. After several

FROM THE 297TH DISTRICT COURT OF TARRANT months, Hodges was awarded standard visitation, with Mary COUNTY TRIAL COURT NO. 1181223D staying with him and Lana every other weekend.

Attorneys and Law Firms In 2007, Mary saw photographs of Hodges' wedding and asked him about “French kissing.” Hodges explained what it

Wm Reagan Wynn, Kearney Wynn, Fort Worth, TX, was and demonstrated by kissing her and putting his tongue

Attorney for Appellant.

in her mouth. Mary later “French kissed” her mother and Joe Shannon, Jr., Crim. Dist. Atty., Charles Mallin, Asst. said that Hodges had shown her how to kiss. Sally reported

Crim. Dist. Atty., Chief, App. Div., Edward Wilkinson, Lisa the incident to Child Protective Services (CPS), and after an

Callaghan, Dawn Ferguson, Asst. Crim. Dist. Attys., Fort investigation, CPS “ruled out” sexual abuse.

Worth, TX, Attorney for State. In 2009, when Mary was nine years old, Sally began to notice

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ. that Mary was clingy when she came home from weekends

at Hodges's house. Mary often called Sally from her bedroom in Hodges's house and asked Sally to stay on the line in case MEMORANDUM OPINION 1 Mary needed her. That year, Mary attended a church youth

retreat at Great Wolf Lodge. At the retreat, Mary confided to 1 her small group leader, Ann, that she was confused about her See Tex.R.App. P. 47.4.

sexuality and said that it was because of her dad. Mary told Ann that Hodges had shown her “inappropriate places” on her SUE WALKER, JUSTICE

body, had touched her there, and had expected her to do the *1 I. Introduction Appellant Charles Lee Hodges appeals his same. Mary also said that Hodges “had French-kissed her on

conviction for indecency with a child. See Tex. Penal Code the cheek at Six Flags and expected her to do the same thing

Ann. § 21.11(a)(1) (West 2011). In three points, he argues that back.” Ann took Mary to find the children's pastor from the

the trial court erred by failing to include an instruction in the church, Jessie, who was also at the retreat. Mary told Jessie

jury charge on the State's election and abused its discretion that she thought she was a lesbian because she did not like it

by admitting inadmissible opinion and hearsay testimony. We when boys touched her. When Jessie asked which boys had

will affirm. touched her, Mary said, “not boys ... my dad.” Jessie then

Hodges v. State, Not Reported in S.W.3d (2015)

her with his tongue, that he had touched her down there, which [ed]” her ear, and told her to do the same to him. When Mary

she motioned with her hands to [be] her private parts, and that told him that she did not know how to do that, he “seemed a

he helped her with her bra.” Mary also said that Hodges had little mad,” which made Mary feel bad. Sometimes Hodges

kissed her “mouth to mouth” and that his tongue had touched would be in Mary's room when she got out of the shower and

her tongue. Mary said that anything that happened between would watch her get dressed. Hodges would get mad if she

her and Hodges occurred “over a year ago.” Mark and Jessie ever locked her bedroom door. 3

contacted Sally and CPS. 3 At trial, Lana testified that the doorknob to Mary's *2 Sally went to Great Wolf Lodge and found her daughter bedroom did not have a lock on it, and a photograph of

crying and “extremely upset.” Mark and Jessie told Sally what the door was introduced into evidence. Mary had told them. Mary kept apologizing to her mother and Mary said that Hodges gave her the “birds and the bees talk” said that she could not remain silent any longer but did not when she was nine. Hodges explained sexual intercourse and want to hurt her dad. masturbation to her. Hodges touched himself to demonstrate masturbation, or as he called it, “pleasurization.” He told

Hodges called Sally after the retreat to say he was coming Mary that all guys will want her body, and he moved his hands to visit Mary, but Sally refused. After Hodges got angry, “[o]ver [her] curves.” Sally told him “that there was an investigation going on” and

gave him the phone number for the investigating detective. Regarding the evidence to support count one of the Sally did not tell Hodges what the investigation was about. indictment, which alleged that Hodges committed indecency Hodges called Detective Aaron Martinez, and the detective with a child by touching Mary's female sexual organ, Mary recorded the conversation. Although the detective had not testified, yet told Hodges the subject of the investigation, Hodges

made comments that made the detective realize that Hodges Q. Now, were there times that [Hodges] touched you on “automatically assum[ed]” that the investigation involved your body parts in a way that made you feel uncomfortable? “something sexual” with Mary. Hodges told the detective that

Mary had been acting out sexually. He said that Mary ran A. Yes, ma'am.

around naked at her mother's house and tried to do the same *3 Q. And can you tell us where you were when this

at his house. Hodges also told the detective about an incident would happen?

when Mary “put [his] hand on her crotch” while the two were

sitting next to each other watching TV. Hodges said that he A. In the living room at his house. immediately pulled his hand back and told Mary that he was

not comfortable with that behavior. Hodges told the detective Q. So do you mean in the living room of [his] house ... ? that he was going to stop contact with Mary “out of self-

preservation” because her conduct scared him. A. Yes, ma'am. Q. And where would you be in the living room?

Hodges was ultimately charged with one count of indecency

with a child by touching Mary's female sexual organ and A. We would be sitting on the couch and we would be on with one count of indecency with a child by touching Mary's the left side of the couch. breast.

Q. Did he sit there a lot?

At trial, Mary testified that the first incident with Hodges A. Yes, ma'am.

that made her “uncomfortable” occured when she asked him

how people “kissed at weddings” when she was nine years Q. And what would you be doing? old. Hodges demonstrated by putting his tongue in her mouth.

Mary testified that Hodges “French kissed” her “almost every A. I would be watching TV. other weekend.” He kissed her in public once while at Six

Flags; they were in line for a snack, he was holding her in Q. So would he be watching TV as well?

his arms, and he kissed her cheek with his tongue. Another A. Yes, ma'am.

time, Hodges lay on top of her in his bedroom, “tongue kiss

Hodges v. State, Not Reported in S.W.3d (2015)

Detective Martinez also testified at trial, and the recorded Q. So the two of you are on the couch watching TV, and conversation between him and Hodges was admitted into what would he do? evidence. Detective Martinez testified that sex offenders commonly blame their actions on the child victim.

A. He would put his arm around me down my breast and

down to my private. Hodges testified at trial that he talked to Mary about sexuality when she was nine because she was infatuated with a boy

Q. When you say your private, are you referring to your across the street and Hodges was worried that she “might

genitals or female sexual organ?

try something sexual with him.” Hodges said he read about A. Yes, ma'am. how to talk to children about sex on the Planned Parenthood website. He told Mary that “masturbation is a perfectly

Q. Because you're 15 now and you know what that is. normal thing that you do by yourself in private,” but he did not describe or demonstrate the act of masturbation. Hodges

A. Yes, ma'am. denied ever showing Mary how to French kiss or kissing her cheek or tongue with his tongue.

Q. And you said he would put his hand down so that it

touched your breast and then touched your genitals?

*4 Hodges testified regarding the incident in 2007 that A. Yes, ma'am. resulted in the CPS investigation. He and Mary were wrestling on the couch, Mary was on top of him, they grabbed

Mary explained that this happened “[m]any” times, beginning each other's hands and legs so “there was nothing left but our when she was nine years old. She said that she would be mouths,” and they started biting each other. Mary “stuck her wearing either a big T-shirt and underwear or jeans and a T- tongue down in [his] mouth,” and Hodges “jerked back and shirt and that Hodges would rub his hand on her female sexual said no.” He later discovered that Mary had also French kissed organ on top of her clothing. She testified that she would try Sally. to avoid being near Hodges by sitting on the other side of the

couch but that Hodges would act upset or mad so she would Hodges testified that during Mary's first August weekend go over to where he was sitting. Mary remembered that on visitation in 2009, he and Mary were watching television on three occasions while sitting on the couch, Hodges asked her the couch when Mary “took [his] hand and put it down in her to touch his “male parts” and took her hand and placed it on crotch area.” Hodges testified that he “jerked [his] hand back his “male genital parts” over his clothing. When Mary moved and said no.” He said that he was in shock and later told his her hand, he placed it back and told her it was okay to touch mother about the incident, although he did not tell Sally. After him there. that incident, he would not allow Mary to sit next to him or kiss him. He also told Mary that he could not be around her

Mary said that she remembered telling Hodges “no” once if she did “that kind of stuff” again. when he kissed her neck down to her fingertips and him

responding by “saying something along the lines of this is Hodges also presented evidence that thyroid problems what daddies and daughters do.” Hodges also told Mary that can cause depression and that depression can lead to if she ever told anyone, he would not want to see her again. hallucinations and delusions that can be sexual in nature.

On cross-examination, Mary agreed that she had told her During the State's case on rebuttal, the trial court required the counselor that she “had used this alleged sex abuse for State to elect what incidents of criminal conduct it relied on bragging rights to get sympathy,” as an excuse for bad for each count of the indictment per Hodges's request for an behavior, and to get attention. She also agreed that Hodges election. The State elected “the first fondling offense” that used to get upset with her when she walked around the house occurred on Hodges's couch in 2009, as testified to by Mary. without clothes on. Mary agreed that her father gave her the The jury was never informed of the State's election by the trial “birds and the bees” talk because she was “infatuated” with court or by the parties. And the jury charge did not inform the a boy across the street. Mary also said on cross-examination jury of the State's election. Hodges did not object to the lack that she has a thyroid disease that can cause depression and of a specific unanimity instruction in the jury charge. can affect her emotional feelings.

Hodges v. State, Not Reported in S.W.3d (2015)

The jury convicted Hodges of count one of the indictment,

which alleged that on or about August 1, 2009, Hodges *5 An egregious harm determination must be based on a

“intentionally, with the intent to arouse or gratify [his] sexual finding of actual rather than theoretical harm. Cosio, 353

desire ..., engage[d] in sexual contact by touching the female S.W.3d at 777. In conducting our harm analysis, we must

sexual organ of [Mary], a child younger than 17 years and decide whether the error was so egregious and created such

not the spouse of [Hodges].” The jury found him not guilty harm that Hodges was deprived of a fair and impartial trial

of the second count, which alleged that on or about August —in short, that “egregious harm” has occurred. See Celis

1, 2009, Hodges “intentionally, with the intent to arouse or v. State, 416 S.W.3d 419, 423 n.3 (Tex.Crim.App.2013);

gratify [his] sexual desire ..., engage[d] in sexual contact by Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985)

touching the breast of [Mary], a child younger than 17 years (op. on reh'g); see Tex.Code Crim. Proc. Ann. art. 36.19

and not the spouse of [Hodges].” The trial court sentenced (West 2006). When assessing harm based on the particular

Hodges to eight years' confinement for count one. facts of the case, the reviewing court should consider the

charge, the state of the evidence, including the contested issues and the weight of the probative evidence, the parties' arguments, and all other relevant information in the record. III. ELECTION INSTRUCTION See Cosio, 353 S.W.3d at 777.

In his first point, Hodges argues that the trial court erred by Because the harm in this case stems from the trial court's

failing to instruct the jury of the State's election. 4 The State failure to inform the jury of the State's election, we will also

concedes error but argues that Hodges was not egregiously analyze any potential harm in light of the four purposes of the harmed by the trial court's error. election requirement: (1) the appellant's need to be protected from the admission of extraneous offenses; (2) the risk that

4 Because the jury acquitted Hodges of count two of the jury found the appellant guilty of the charged offense not the indictment, alleging indecency by touching Mary's because it was proven beyond a reasonable doubt but because breast, this issue relates only to count one, alleging of the admission of the extraneous offenses; (3) the risk of a indecency by touching Mary's female sexual organ. nonunanimous verdict; and (4) whether the admission of the When an indictment alleges one sexual assault, but more than extraneous offenses deprived the appellant of adequate notice

one assault is shown by the evidence at trial, the State is regarding which offense to defend against. Reza, 339 S.W.3d

required, upon timely request by the defense, to elect as to at 713, 715; see also Dixon v. State, 201 S.W.3d 731, 734–

the specific incident of sexual assault that the State will use 36 (Tex.Crim.App.2006). to convict. See Phillips v. State, 193 S.W.3d 904, 909–10

(Tex.Crim.App.2006); O'Neal v. State, 746 S.W.2d 769, 772 Here, the jury charge required only that the jurors

(Tex.Crim.App.1988). Following the State's election of the “unanimously agree[ ] upon a verdict,” without requiring

act on which it will proceed for conviction, the defendant unanimity based on the evidence presented in the case. Thus, is entitled to an instruction charging the jury to consider the charge permitted a non-unanimous verdict. See Cosio, 353

only the elected act in deciding guilt and limiting the jury's S.W.3d at 777. Neither party mentioned the State's election

consideration of all other unelected acts to the purposes during closing arguments, but neither party “added to the

for which they were admitted. Duffey v. State, 326 S.W.3d charge error[ ] by telling the jury that it did not have to be 627, 630 (Tex.App.—Dallas 2009, no pet.), disagreed with unanimous about the specific instance of criminal conduct.”

on other grounds by Reza v. State, 339 S.W.3d 706 (Tex. Id.

App—Fort Worth 2011, pet. ref'd); see Cosio v. State, 353

S.W.3d 766, 776 (Tex.Crim.App.2011). No such instruction Regarding the state of the evidence, Mary described how, was included in the jury charge in this case, and because beginning when she was nine years old, Hodges would put

Hodges did not object to the lack of a proper unanimity his arm around her while they watched TV on his couch and

instruction, we must evaluate the error for egregious harm. would touch her breast and her “private.” Hodges testified

See Cosio, 353 S.W.3d at 776–77 (holding that appellant and admitted to touching Mary's sexual organ, explaining that forfeited any constitution-based jury charge claim by not Mary was the one who grabbed his hand and placed it there.

objecting that charge allowed for non-unanimous verdict); The jury heard Hodges's recorded telephone conversation

Reza, 339 S.W.3d at 714. with Detective Martinez, in which Hodges said that Mary had

Hodges v. State, Not Reported in S.W.3d (2015)

grabbed his hand and placed it on her sexual organ. Detective — Fort Worth Aug. 27, 2010, no pet.) (not designated for

Martinez testified that sex offenders commonly blame their publication). In other words, here, if the jury found Mary's

actions on their child victims. testimony about the offenses of indecency by touching her

female sexual organ on several occasions was credible as We will also consider the four purposes of the election rule in to one of those occasions, then the jury likewise must have

our harm analysis. See Reza, 339 S.W.3d at 715. Regarding believed that her testimony was credible as to all of them. 5

the first purpose—Hodges's need to be protected from the See Dixon, 201 S.W.3d at 735; Reza, 339 S.W.3d at 716. admission of extraneous offenses—the lack of a specific

unanimity instruction in the jury charge was harmless in 5 And although the jury was not convinced beyond a regard to this purpose because evidence of other extraneous reasonable doubt that Hodges committed indecency by sexual acts between him and Mary were admissible to show touching Mary's breast, a review of the record reveals their relationship and states of mind under article 38.37. See that the testimony focused on touching Mary's sexual Tex.Code Crim. Proc. Ann. art. 38.37, § 2 (West Supp.2014); organ, not her breast. Mary testified generally that see Dixon, 201 S.W.3d at 734; Phillips, 193 S.W.3d at 909– Hodges “would put his arm around me down my breast 10; Reza, 339 S.W.3d at 715. and down to my private.” Similarly, regarding the risk of a nonunanimous verdict,

The risk that the jury found Hodges guilty of indecency Mary's testimony regarding Hodges touching her female by touching Mary's sexual organ based on the admission of sexual organ was general in nature; she testified that it extraneous offenses, rather than proof of the charged offense happened on his couch while watching TV and differentiated beyond a reasonable doubt—the second purpose of the between incidents only by what she was wearing on different election requirement—was low in this case. Mary herself was occasions—a big T-shirt and underwear or a T-shirt and the one who recounted the multiple acts of indecency here, jeans. We perceive little to no risk that any juror would have and she testified generally that Hodges fondled her “many believed that Mary's testimony as to the incidents of Hodges times” on his couch while they were watching television, with touching her sexual organ was credible as to one incident but the first occurring when she was nine years old. The jury was not as to another. See Dixon, 201 S.W.3d at 735; Reza, 339 not persuaded by Hodges's explanation that Mary initiated the S.W.3d at 716–17. touching. As the court of criminal appeals explained in Dixon, Regarding the final purpose of the election requirement— *6 This case is not concerned to provide the defendant with adequate notice about which

with evidence of different activities offense to defend against—when the State made its election from different sources that a jury at trial, the trial court asked defense counsel if the election might perceive to “add up” to the was “adequate,” and defense counsel agreed. Hodges has not defendant being guilty even though indicated that he was adversely affected by not receiving no individual offense was proven notice of the State's election earlier in the trial. The notice beyond a reasonable doubt. Moreover, purpose of the election requirement does not weigh in favor the child complainant did not testify of a finding of egregious harm. See Duffey, 326 S.W.3d at 634 about a number of varied incidents (holding due process concerns not implicated when defendant with differing details that might have received timely notice of State's election upon request and incrementally added to the idea that the when counsel expressly acknowledged understanding the defendant must have done something election and did not indicate that the defense was adversely to provoke the plethora of stories about affected). his activities. Having considered the harm to Hodges in light of the charge,

201 S.W.3d at 735. And as we have stated before, “in cases the state of the evidence, the parties' arguments, and the

involving ‘complainant testimony of a continuing course of purposes of the election rule, we hold that the trial court's error

the same type of nonspecific, indistinguishable conduct over in failing to instruct the jury regarding the State's election

a long time period, the issue is typically whether the jury was not so egregious and did not create such harm as to deny

believes the complainant generally or not at all.’ ” Reza, 339 Hodges a fair and impartial trial. See Almanza, 686 S.W.2d at

S.W.3d at 715 (quoting Smith v. State, Nos. 02–08–00394– 171; see also Cosio, 353 S.W.3d at 777; Dixon, 201 S.W.3d

CR, 02–08–00395–CR, 2010 WL 3377797, at *13 (Tex. App

Hodges v. State, Not Reported in S.W.3d (2015)

at 734–36; Phillips, 193 S.W.3d at 913–14; Reza, 339 S.W.3d State, 402 S.W.3d 252, 254 (Tex.Crim.App.2013); Sample

at 717. We overrule Hodges's first point. v. State, 405 S.W.3d 295, 300 (Tex.App.—Fort Worth 2013,

pet. ref'd). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's IV. ADMISSIBILITY OF OPINION TESTIMONY refusal to rule. Tex.R.App. P. 33.1(a)(2); Pena v. State, 353 S.W.3d 797, 807 (Tex.Crim.App.2011). A reviewing court

*7 In his second point, Hodges argues that the trial court should not address the merits of an issue that has not been

abused its discretion by allowing the State to present, in its preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473

case on rebuttal, opinion evidence concerning Mary's good (Tex.Crim.App.2010) (op. on reh'g); Sample, 405 S.W.3d at

character for truthfulness when her character for truthfulness 300.

had not been attacked. Hodges's complaint concerns the

following testimony of Jessie, one of the adult leaders at the Here, defense counsel objected to relevancy, “capab[ility] or

church retreat:

competen[cy] to answer the question,” and nonresponsive, Q. What is your opinion of [Mary]'s character for and he obtained a ruling on only his nonresponsive objection.

truthfulness? Defense counsel did not preserve his rule 608 argument for appeal. See Tex.R.App. P. 33.1(a)(1); Landers, 402 S.W.3d

[DEFENSE COUNSEL]: Objection, Your Honor. That's at 254; Sample, 405 S.W.3d at 300; see also Tex.R. Evid. not—that's not relevant, or she's not capable or competent 608(a) (setting forth requirements for admission of character to answer that question. Not a proper question. evidence). We overrule Hodges's second point.

THE COURT: I think there may be a preliminary question

in front of that. You may rephrase at this point if you would

like to. V. ADMISSIBILITY OF HEARSAY TESTIMONY

Q. (BY [THE STATE] ) In your experiences with [Mary], In his third point, Hodges argues that the trial court abused

have you formed an opinion as to her character for its discretion by admitting Sally's testimony about certain

truthfulness? statements made by Mary in violation of the hearsay rule. Specifically, he complains of Sally's testimony that she once

A. Yes. saw Mary “tugging her shirt down to show her cleavage and part of her breasts because that's what Daddy said he liked.”

Q. And is it good or bad? After the trial court overruled defense counsel's hearsay and nonresponsive objections, Sally explained that Mary had said

A. I would say she's been truthful with me.

she showed her cleavage [DEFENSE COUNSEL]: Objection. That's nonresponsive, because that's what Daddy liked and

Your Honor.

that made Daddy happy and turned THE COURT: Just listen carefully. Just respond to the Daddy on, because he pointed out

question. somebody at Golden Corral that had on a low-cut shirt and was showing off

THE WITNESS: Sorry. her breasts, and that [Mary] wanted to make Daddy happy and please Daddy.

Q. (BY [THE STATE] ) So it's a good one? And that's what made Daddy happy

A. Yes. and pleased him.

To preserve a complaint for our review, a party must have “ ‘Hearsay’ is a statement, other than one made by the

presented to the trial court a timely request, objection, or declarant while testifying at the trial or hearing, offered in

motion that states the specific grounds for the desired ruling evidence to prove the truth of the matter asserted.” Tex.R.

if they are not apparent from the context of the request, Evid. 801(d). The “hearsay rule” excludes the admission of

objection, or motion. Tex.R.App. P. 33.1(a)(1); Landers v. hearsay evidence, but the rules of evidence also provide that

Hodges v. State, Not Reported in S.W.3d (2015)

many types of hearsay evidence are not excluded by the Here, we have detailed the evidence presented at trial, hearsay rule. See Tex.R. Evid. 802, 803, 804. including Mary's testimony about how Hodges fondled her on many occasions, French kissed her, demonstrated *8 In this case, we need not decide whether the complained- masturbation to her, and watched her change clothes.

of statements constitute inadmissible hearsay because, even Hodges vigorously cross-examined Mary and Sally about the assuming that they were, any error in their admission allegations and presented evidence in an attempt to contradict was harmless. Error in the admission of hearsay evidence Mary's testimony, such as evidence that her door did not have is subject to harmless error analysis under rule 44.2(b). a lock and that her shower had an opaque shower curtain. Tex.R.App. P. 44.2(b); see Mosley v. State, 983 S.W.2d The jury heard Hodges's testimony denying or explaining 249, 259 (Tex.Crim.App.1998) (op. on reh'g), cert. denied, the allegations against him, including his explanation of 526 U.S. 1070 (1999); Moon v. State, 44 S.W.3d 589, 594 the Golden Corral incident. Hodges said that Mary had (Tex.App.—Fort Worth 2001, pet. ref'd). A substantial right asked what “sexy” meant and he had pointed out a woman is affected when the error had a substantial and injurious at Golden Corral who was wearing a low-cut blouse and effect or influence in determining the jury's verdict. King said that the woman was “trying to be sexy.” The State v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (citing did not mention the Golden Corral incident during closing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. argument, instead emphasizing Mary's testimony, Hodges's 1239, 1253 (1946)). Conversely, an error does not affect a incriminating statements to the detective, and Hodges's substantial right if we have “fair assurance that the error did explanation of the August 1, 2009 incident. We conclude that, not influence the jury, or had but a slight effect.” Solomon v. in the context of the entire case against Hodges, any error in State, 49 S.W.3d 356, 365 (Tex.Crim.App.2001); Johnson v. the admission of Sally's testimony set forth above did not have State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998). a substantial or injurious effect on the jury's verdict and did not affect Hodges's substantial rights. See King, 953 S.W.2d

In making this determination, we review the record as a at 271. Thus, we disregard the alleged error. See Tex.R.App. whole, including any testimony or physical evidence admitted P. 44.2(b). We overrule Hodges's third point. for the jury's consideration, the nature of the evidence

supporting the verdict, and the character of the alleged

error and how it might be considered in connection with

other evidence in the case. Motilla v. State, 78 S.W.3d 352, VI. CONCLUSION

355 (Tex.Crim.App.2002). We may also consider the jury Having overruled Hodges's three points, we affirm the trial

instructions, the State's theory and any defensive theories, court's judgment.

whether the State emphasized the error, closing arguments,

and even voir dire, if applicable. Id. at 355–56.

FILE COPY APPENDIX 2

FILE COPY COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00073-CR

CHARLES LEE HODGES APPELLANT

THE STATE OF TEXAS STATE

------------ FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1181223D ------------

ORDER

------------

We have considered “Appellant’s Motion For Rehearing.”

It is the opinion of the court that the motion for rehearing should be and is

hereby denied and that the opinion and judgment of December 18, 2014, stand

unchanged.

The clerk of this court is directed to transmit a copy of this order to the

attorneys of record.n

SIGNED February 5, 2015.

/s/ Sue Walker SUE WALKER JUSTICE PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

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