Alan Frederick Bearden v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 23, 2024
• Docket: 05-22-01237-CR
• Status: Published

Opinion

Affirmed and Opinion Filed July 23, 2024

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-01237-CR

ALAN FREDERICK BEARDEN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 86th Judicial District Court Kaufman County, Texas Trial Court Cause No. 19-40112-86-F

MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Carlyle Opinion by Justice Partida-Kipness A jury found Appellant Alan Fredrick Bearden guilty of continuous sexual

abuse of a child and assessed punishment at life imprisonment. The trial court

entered judgment in accordance with the jury’s verdict. Bearden brings two issues

on appeal: (1) the evidence is insufficient to support the verdict; and (2) the trial

court committed reversible error by submitting an erroneous definition of “sexual

contact” in the jury charge. We affirm. BACKGROUND1

The complaining witness Charlotte lived across the street from Bearden in the

Heartland area of Kaufman County. When Charlotte was in fourth grade, she

befriended Bearden’s granddaughter, Emily, who often visited Bearden at his home.

Because of this friendship with Emily, Charlotte began spending significant time at

Bearden’s home, sometimes sleeping over when Emily was there.

When Charlotte was in fourth or fifth grade and about ten years old, Bearden

began sexually abusing her. Bearden would often touch Charlotte’s inner thigh, then

move up and touch her vagina. This occurred in various locales. On one instance,

Charlotte was sitting on a couch in the garage with Bearden next to her. While

Charlotte was using a computer tablet, Bearden put his hand under her pants and

underwear and touched her vagina. This happened again on numerous occasions.

Charlotte also described how Bearden would allow Charlotte to drive a golf cart in

the neighborhood. While Charlotte drove, Bearden sat next to her, put his hand under

her pants, and began touching her vagina.

Bearden, Emily, and Charlotte would often sleep in the same bed. Emily’s

grandmother (Nana) would sleep in the master bedroom, while Bearden and the girls

usually slept in a back bedroom separate from Nana. While in this separate bedroom,

Bearden touched Charlotte’s vagina on repeated occasions. After Nana died in June

1 We use the pseudonyms given at trial to protect the identity of the complaining witness and another child victim. –2– 2016, Bearden moved into the master bedroom, where the sexual abuse continued.

According to Charlotte, Bearden touched her vagina countless times from the time

Charlotte was ten to fourteen years old. On several instances, Bearden penetrated

Charlotte’s vagina with his fingers. Occasionally, Bearden put Charlotte’s hand on

his penis and encouraged her to touch him more. Bearden also touched Emily’s

breast, buttocks, and vagina on many occasions.

In October 2017—when Charlotte was twelve years old—she, Emily, and

Bearden went to Town East Mall. A mall patron alerted security after observing

Bearden’s behavior with the girls. A security officer then observed Bearden and

noticed him invading their personal space, stroking Charlotte’s hair, and appearing

to touch Charlotte’s leg while the girls were seated in massage chairs. The officer

approached Bearden to investigate. Bearden became defensive and denied any

wrongdoing. The officers called Charlotte’s and Emily’s parents. Charlotte’s mother

picked Charlotte up from the mall. After the incident, Charlotte’s parents forbade

her from going into Bearden’s house. However, Charlotte continued to visit the

Bearden residence, and the sexual abuse continued after the Town East Mall

incident.

In May 2019—when Charlotte was fourteen years old—her parents

discovered her in possession of an Apple watch. Upon investigation, they discovered

Bearden had purchased the watch for Charlotte at her insistence. Upon further

questioning by her mother, Charlotte stated Bearden had touched her. Charlotte’s

–3– parents called police, and Charlotte was interviewed by a forensic examiner with the

Kaufman County Children’s Advocacy Center. During the interview, Charlotte

described the sexual abuse she had experienced from ages ten to fourteen at the

hands of Bearden. Emily was also forensically interviewed, but she denied any

abuse. However, after later therapy sessions, Emily disclosed sexual abuse by

Bearden.

Bearden was arrested and charged with continuous sexual abuse of a child.

The case proceeded to trial. The State’s case-in-chief included testimony from

Charlotte, Emily, the forensic examiner, investigators, Charlotte’s mother, one of

Bearden’s neighbors, and Emily’s therapist. Bearden testified in his defense and

denied the accusations. The defense also offered testimony from the forensic

examiner and several of Bearden’s other granddaughters.

The jury found Bearden guilty of continuous sexual abuse of a child as

charged in the indictment and assessed punishment at life in prison. The trial court

entered judgment in accordance with the jury’s verdict. This appeal followed.

STANDARD OF REVIEW

In determining whether the evidence is sufficient to support a conviction, we

must consider all the evidence in the light most favorable to the verdict and

determine whether, based on that evidence and reasonable inferences therefrom, a

rational fact-finder could have found the essential elements of the crime beyond a

reasonable doubt. Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014).

–4– This “familiar standard gives full play to the responsibility of the trier of fact fairly

to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” Id. (quoting Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979)). When facts support

conflicting inferences, the reviewing court must presume the trier of fact resolved

any such conflicts in favor of the prosecution and must defer to that resolution. Id.

(citations omitted). We defer to the fact finder’s credibility and weight

determinations because the fact finder is the sole judge of the witnesses’ credibility

and the weight to be given to their testimony. See Winfrey v. State, 393 S.W.3d 763,

768 (Tex. Crim. App. 2013).

ANALYSIS

In two issues, Bearden asserts (1) the evidence was insufficient to support his

conviction for continuous sexual abuse of a child; and (2) the trial court committed

reversible error by submitting an erroneous definition of “sexual contact” in the jury

charge. We address each issue in turn.

I. The Evidence Is Sufficient To Support Bearden’s Conviction

In his first issue, Bearden asserts the evidence is insufficient to support his

conviction for continuous sexual abuse of a child. We disagree.

A. Legal standards—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, he commits two or more acts of sexual

–5– abuse and, at the time of the commission of each act, he is seventeen years of age or

older and the victim is a child younger than fourteen. TEX. PENAL CODE § 21.02(b).

Relevant here, an “act of sexual abuse” means an act of indecency with a child

by contact, or sexual assault. Id. § 21.02(c)(2)–(3). A person commits indecency

with a child by contact if, with a child younger than seventeen years of age, that

person engages in sexual contact with the child. Id. § 21.11(a)(1). Generally, “sexual

contact” means, with the intent to arouse or gratify the sexual desire of any person,

any touching by a person, including touching through clothing, of the anus, breast,

or any part of the genitals of a child. Id. § 21.11(c)(1). However, continuous sexual

abuse of a child pursuant to indecency with a child excludes “touching through

clothing, the breast of a child.” Id. § 21.02(c)(2).

A person commits the offense of sexual assault of a child if, regardless of

whether the person knows the age of the child at the time of the offense, he

intentionally or knowingly causes the penetration of the sexual organ of a child by

any means. Id. § 22.011(a)(2)(A).

The exact dates of the abuse need not be proven; the offense of continuous

sexual abuse of a child only requires proof that two or more acts of sexual abuse

occurred during a period of thirty days or more. Garner v. State, 523 S.W.3d 266,

271 (Tex. App.—Dallas 2017, no pet); TEX. PENAL CODE § 21.02(d) (jury not

required to unanimously agree on which specific acts of sexual abuse were

committed by defendant or exact dates when those acts occurred, but jury must agree

–6– unanimously that defendant, during period of thirty or more days, committed two or

more acts of sexual abuse). Additionally, child victims are not required to be specific

about the dates the abuse occurred. Turner v. State, No. 05-21-00922-CR, 2023 WL

3991662, at *3 (Tex. App.—Dallas June 14, 2023, pet. denied) (mem. op., not

designated for publication). The testimony of a child victim alone is sufficient to

support a conviction for continuous sexual abuse of a child. Garner, 523 S.W.3d at

271 (citing TEX. CODE CRIM. PROC. art. 38.07(a)).

B. Application

Here, the indictment alleged that during a period thirty or more days in

duration, from approximately August 1, 2014 to December 26, 2018, Bearden

committed two or more acts of sexual abuse, specifically: (1) touching Charlotte’s

genitals; (2) causing Charlotte to touch Bearden’s genitals; and/or (3) penetrating

Charlotte’s sexual organ with his finger. The State’s evidence in support of the

charges came primarily from the testimony of Charlotte, Emily, and forensic

examiner Ramirez.

Charlotte testified Bearden touched her vagina on numerous occasions when

she was between ten and fourteen years old. She described a time where she and

Bearden were sitting on a couch in the garage, looking at a computer tablet. Bearden

put his hand under her pants and underwear and touched her vagina. Charlotte stated

this happened on numerous occasions, whenever they were on that couch. Charlotte

further described an occasion where Bearden touched Charlotte’s vagina while she

–7– was driving a golf cart and Bearden was next to her. Charlotte testified Bearden also

touched her vagina while in one or more bedrooms of Bearden’s house, and

sometimes Bearden would penetrate Charlotte’s vagina with his finger. Charlotte

also described how Bearden had her touch his penis on a few occasions. The abuse

occurred both before and after Nana’s death in 2016. Charlotte also stated abuse

occurred both before and after the Town East Mall incident in 2017.

Emily testified she witnessed Bearden touch Charlotte’s (and Emily’s) vagina

on multiple occasions, both before and after Nana’s death. Forensic examiner

Ramirez testified Charlotte told her Bearden had sexually abused Charlotte over a

period of time when she was under fourteen years old. Charlotte told Ramirez

Bearden had touched her “girl part” ten or fifteen times.

In sum, the jury heard testimony that between the time Charlotte was ten and

fourteen years old (1) Bearden touched her genitals on multiple occasions; (2)

Bearden caused Charlotte to touch his genitals; and (3) Bearden penetrated

Charlotte’s sexual organ with his finger. Charlotte’s testimony alone is sufficient to

support Bearden’s conviction for continuous sexual abuse of a child, and other

witnesses corroborated Charlotte’s allegations. Garner, 523 S.W.3d at 271; TEX.

CODE CRIM. PROC. art. 38.07(a); TEX. PENAL CODE §§ 21.02(b), (c)(2)–(3),

21.11(a)(1), (c)(1), 22.011(a)(2)(A).2

2 Trial testimony established Bearden was well above seventeen years of age at the time of the incidents, and Bearden does not challenge this element of the crime. –8– Bearden asserts the State did not prove two or more acts of sexual abuse

occurred over a period of thirty days. Bearden complains Charlotte made only

“vague references” to “touching.” However, Bearden acknowledges Charlotte

testified he touched her vagina on several instances, as discussed above. These acts

support a conviction for continuous sexual abuse of a child. See TEX. PENAL CODE

§§ 21.02(b), (c)(2), 21.11(a)(1), (c)(1).

Bearden also complains Charlotte did not provide specificity regarding the

timing of the acts. While Charlotte did not give specific dates for the acts, this was

not required. Turner, 2023 WL 3991662, at *3. It is not often that children will know,

even within a few days, the dates they were sexually assaulted. Sledge v. State, 953

S.W.2d 253, 256 n.8 (Tex. Crim. App. 1997); Montero v. State, No. 05-18-01281-

CR, 2019 WL 3229170, at *2 (Tex. App.—Dallas July 18, 2019, no pet.) (mem. op.,

not designated for publication). Furthermore, when an indictment alleges an offense

occurred “on or about” a certain date, the State is not required to prove the offense

occurred on the specific date alleged, but only that the offense occurred prior to the

presentment of the indictment and within the limitations period. Sledge, 953 S.W.2d

at 255–56; see TEX. CODE CRIM. PROC. art. 21.02(6).

Here, the indictment alleged that during a period thirty or more days in

duration, from approximately August 1, 2014 to December 26, 2018, Bearden

committed two or more acts of sexual abuse. As discussed above, witness testimony

supports Bearden sexually abused Charlotte on multiple occasions during this

–9– timeframe, when Charlotte was between the ages of ten and fourteen. Charlotte

testified the sexual abuse occurred prior to Nana’s death (June 2016) and after the

Town East Mall incident (October 2017). This necessarily entails two acts of sexual

abuse during a period of thirty days or more. See Turner, 2023 WL 3991662, at *3.

(children’s testimony that defendant committed multiple acts of sexual abuse when

they were between twelve and fourteen years old sufficient to support conviction for

continuous sexual abuse of a child); Montero, 2019 WL 3229170, at *2–4 (evidence

sufficient where victim testified sexual abuse occurred when she was eight years old

and occurred two to three times a week until she was twelve); Michell v. State, 381

S.W.3d 554, 561 (Tex. App.—Eastland 2012, no pet.) (evidence sufficient to support

the conviction for continuous sexual abuse of a child; while child victim could not

give specific dates, she described instances of sexual abuse occurring over several

years and gave details of where the abuse took place, the school grade, or season of

the year).

The jury had sufficient evidence to conclude Bearden sexually abused

Charlotte on at least two occasions thirty or more days apart, when Charlotte was

between ten and fourteen years of age. The jury acts as the sole judge of the

witnesses’ credibility and the weight to be given to their testimony. See Winfrey, 393

S.W.3d at 768. We defer to their finding and determine the evidence was sufficient

to prove Bearden committed continuous sexual abuse of a child as charged in the

indictment. We overrule Bearden’s first issue.

–10– II. Jury Charge

In his second issue, Bearden contends the trial court reversibly erred by

submitting an incorrect definition of “sexual contact” in the jury charge. We

disagree.

Our first duty in analyzing a jury-charge issue is to decide whether error exists.

Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Then, if we find error,

we analyze that error for harm. Id. The degree of harm necessary for reversal

depends on whether the appellant preserved the error by objection. Id. Jury charge

error requires reversal when the defendant has properly objected to the charge and

we find “some harm” to his rights. Id. When the defendant fails to object or states

he has no objection to the charge, we will not reverse for jury charge error unless the

record shows “egregious harm” to the defendant. Id. at 743-44.

Egregious harm exists if the error affects the very basis of the defendant’s

case, deprives him of a valuable right, or vitally affects a defensive theory. Lozano

v. State, 636 S.W.3d 25, 29 (Tex. Crim. App. 2021) (citing Ngo, 175 S.W.3d at 750).

To determine if the jury charge egregiously harmed the defendant, we examine the

record as a whole, including the entire jury charge, the evidence, the contested issues,

and the arguments of counsel, and anything else in the record that informs our

analysis. Id. The record must show the defendant suffered actual harm, not

theoretical harm, and neither party has burden to show harm. Id. Egregious harm is

–11– a “high and difficult standard” to meet. Villarreal v. State, 453 S.W.3d 429, 433

(Tex. Crim. App. 2015).

Here, Bearden asserts the abstract portion of the jury charge included the full

statutory definition of indecency with a child, including touching the child’s breast.

See TEX. PENAL CODE § 21.11(c)(1). Because the offense of continuous sexual abuse

of a child excludes touching of the breast of a child, Bearden asserts the inclusion of

this definition constituted reversible error. See id. § 21.02(c)(2). We assume the

inclusion of the full statutory definition was error. However, Bearden did not object

to the jury charge. Therefore, we will not reverse for jury-charge error unless the

record shows “egregious harm.” Ngo, 175 S.W.3d at 743-44.

Our Court of Criminal Appeals has stated: “Where the application paragraph

of the charge correctly instructs the jury, an error in the abstract instruction is not

egregious.” Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); see also

Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012) (“It is the

application paragraph of the charge, not the abstract portion, that authorizes a

conviction.”).

Here, while the abstract portion of the jury charge contained the full statutory

definition of indecency with a child, including touching the child’s breast, the

application portion of the charge did not allow the jury to convict Bearden for

touching Charlotte’s breast. Instead, the application portion required the jury to find

Bearden committed two or more of the following acts of sexual abuse: (1) touching

–12– Charlotte’s genitals; (2) causing Charlotte to touch Bearden’s genitals; or (3)

penetrating Charlotte’s sexual organ. The application portion of the charge thus

correctly instructed the jury on the acts of sexual abuse necessary to find Bearden

guilty of continuous sexual abuse of a child. See TEX. PENAL CODE §§ 21.02(b)(1),

(c)(2)–(3), 21.11(a)(1), (c)(1)–(2), 22.011(a)(2)(A). Furthermore, the application

paragraphs mirrored the indictment, and sufficient trial evidence supported Bearden

committed each of these types of acts, as discussed above. Any error in the abstract

portion of the charge does not constitute egregious harm. Medina, 7 S.W.3d at 640.

We overrule Bearden’s second issue.

CONCLUSION

The evidence is sufficient to support Bearden’s conviction for continuous

sexual abuse of a child. Furthermore, even if jury charge’s abstract instruction on

“sexual contact” was erroneous, there is no egregious harm where the application

paragraph correctly instructed the jury on the elements necessary to convict Bearden

of continuous sexual abuse of a child. Accordingly, we affirm the trial court’s

judgment.

/Robbie Partida-Kipness/ ROBBIE PARTIDA-KIPNESS Do Not Publish JUSTICE TEX. R. APP. P. 47.2(b) 221237F.U05

–13– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ALAN FREDERICK BEARDEN, On Appeal from the 86th Judicial Appellant District Court, Kaufman County, Texas No. 05-22-01237-CR V. Trial Court Cause No. 19-40112-86- F. THE STATE OF TEXAS, Appellee Opinion delivered by Justice Partida- Kipness. Justices Pedersen, III and Carlyle participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 23rd day of July, 2024.

–14–