Carlos Guevara, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: August 17, 2000
• Docket: 13-99-00198-CR
• Status: Published

Opinion

NUMBER 13-99-198-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

____________________________________________________________________

CARLOS GUEVARA, JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

____________________________________________________________________

On appeal from the 138th District Court of Cameron County, Texas.

____________________________________________________________________

O P I N I O N

Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Hinojosa

Appellant, Carlos Guevara, Jr., was indicted for a single act of aggravated sexual assault of J.G., a child under the age of fourteen years, by intentionally or knowingly causing J.G.'s penis to contact appellant's anus. A jury found him guilty of the offense and assessed his punishment at fifteen years imprisonment. By five issues, appellant contends the trial court erred: (1) when it permitted the State to introduce evidence of extraneous sexual offenses committed by appellant against J.G. without conducting a balancing test as required by Texas Rule of Evidence 403; (2) by finding the prejudicial effect of the extraneous offenses did not exceed the probative value of the evidence; (3) by failing to give the jury a limiting instruction at the time the extraneous offense evidence was admitted; (4) by instructing the jury they could find appellant guilty of the offense even if they found the offense was committed after the victim's fourteenth birthday; and (5) there is no evidence appellant "caused the offense in question." We affirm.

A. Sufficiency of the Evidence

By his fifth issue, appellant contends there is "no evidence appellant caused the aggravated sexual assault charged in the indictment." Appellant concedes that consent is not an issue in a trial for aggravated sexual assault of a child. See Hernandez v. State, 861 S.W.2d 908, 909 (Tex. Crim. App. 1993); Reed v. State, 991 S.W.2d 354, 361 (Tex. App.--Corpus Christi 1999, pet. ref'd)(holding that a child cannot consent to sexual contact). He argues there is no evidence showing that he caused the sexual contact, as required by section 22.021(a) of the penal code:

(a) A person commits an offense:

(1) if the person . . .

(B) intentionally or knowingly: . . .

(iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor . . . .

Tex. Pen. Code Ann. § 22.021(a)(Vernon 1994)(emphasis added). Essentially, appellant contends the child victim was the aggressor, and that appellant did nothing to facilitate the act. However, neither the applicable law nor the facts adduced at trial support appellant's contention.

A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient. Tex. Pen. Code Ann. § 6.04(a) (Vernon 1994). Under this section of the penal code, two combinations may exist to satisfy the requisite causal connection between appellant's conduct and the harm that followed: (1) appellant's conduct may be sufficient by itself to have caused the harm, regardless of the existence of a concurrent cause; or (2) appellant's conduct and the other cause together may be sufficient to have caused the harm. Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986); Umoja v. State, 965 S.W.2d 3, 9 (Tex. App.--Fort Worth 1997, no pet.). Section 6.04(a) further defines and limits the "but for" causality for concurrent causes by its last phrase, "unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient." If the additional cause, other than the defendant's conduct, is clearly sufficient by itself to produce the result, and the defendant's conduct by itself is clearly insufficient, the defendant cannot be convicted. Robbins, 717 S.W.2d at 351; Umoja, 965 S.W.2d at 9.

1. Legal Sufficiency

Appellant has not specified whether he is raising an issue of legal or of factual sufficiency. Because he has prayed for an acquittal or, alternatively, a new trial, we will conduct a review of both legal and factual sufficiency. When reviewing the legal sufficiency of the evidence, the appellate court shall look at all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, No. 1915-98, 2000 Tex. Crim. App. LEXIS 12, at *14-*15 (Tex. Crim. App. Feb. 9, 2000); Patrick v. State, 906 S.W.2d 481, 486 (Tex. Crim. App. 1995); Turro v. State, 867 S.W.2d 43, 46-47 (Tex. Crim. App. 1993). Sufficiency of the evidence is measured by the hypothetically correct jury charge, which accurately sets out the law, is authorized by the indictment, and does not unnecessarily increase the State's burden of proof. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Cano v. State, 3 S.W.2d 99, 105 (Tex. App.--Corpus Christi 1999, pet. ref'd). The jury, as the sole judge of the credibility of the witnesses and the weight to be given their testimony, is free to accept or reject all or any part of the testimony of any witness. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1981); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986), cert. denied, 488 U.S. 872 (1988); Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982).

Viewing the evidence in the light most favorable to the verdict, the parents of the child victim divorced when he was a baby. When J.G. was about nine years old, he desperately wanted to get to know his father, whom he had rarely seen. J.G. began to join his father on weekend activities such as hunting trips. Appellant was a good friend of J.G.'s father and often went along on these trips. Because J.G.'s father did not like picking up J.G., or taking him home, appellant volunteered to do so. Appellant quickly developed a close relationship with J.G., becoming a sort of substitute father. He spent time with the boy, bought him clothing and gifts, took him to the mall, the movies and "four wheeling," gave him rides to and from school and involved him in the church youth group appellant lead.

Appellant's sexual abuse of J.G. began shortly after they met in 1994, when J.G. was ten years old and in the fifth grade, and continued until 1998. J.G. never told anyone about the sexual abuse because appellant told him he would kill himself if J.G. ever said anything. Although appellant did not physically force J.G. to engage in sexual intercourse except "the very last time," J.G. did not resist appellant's sexual advances because:

I looked up to him so much that I never wanted him to go away. So I felt it was the only way I could keep the friendship.

On January 27, 1997, the date of the offense for which appellant was charged, appellant was babysitting J.G. while his mother was out of town for job training. J.G. could not remember the specific details of the act that occurred on that date, but testified that the act followed the pattern of previous acts. Appellant aroused J.G. by rubbing his genitals, then asked J.G. to perform anal sex upon him. J.G. made an outcry statement to his mother in August of 1998.

In his testimony, appellant admitted that his sexual abuse of J.G. went on for years, admitted his participation in the January 27, 1999 act of anal intercourse, and admitted it was his practice to fondle J.G.'s genitals to arouse him before an act of anal intercourse. His statement to police, which was admitted into evidence at trial, contained essentially the same admissions.

We hold the evidence is sufficient that a rational finder of fact could have found the elements of the offense of aggravated sexual assault of a child under the age of fourteen years beyond a reasonable doubt. We hold the evidence is legally sufficient to sustain appellant's conviction.

2. Factual Sufficiency

In reviewing the factual sufficiency of the evidence, we are not bound to view the evidence in the light most favorable to the prosecution, and may consider the testimony of defense witnesses and the existence of alternative hypotheses. Johnson, 2000 Tex. Crim. App. LEXIS at *15; Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We consider all of the evidence in the record related to the appellant's sufficiency challenge, comparing the weight of the evidence that tends to prove guilt with the evidence that tends to disprove it. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We are not free to reweigh the evidence and set aside a jury verdict merely because we believe that a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Clewis, 922 S.W.2d at 135. Disagreeing with the fact finder's determination is appropriate only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice; otherwise, due deference must be accorded the fact finder's determinations, particularly those concerning the weight and credibility of the evidence. Johnson, 2000 Tex. Crim. App. LEXIS at *20. Only if the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust, will we reverse the verdict and remand for a new trial. Clewis, 922 S.W.2d at 133-34; Rosillo, 953 S.W.2d at 813.

The only evidence we find in the record supporting appellant's contention that he did not "cause" the sexual assault of J.G. is appellant's own testimony that J.G. was the instigator of the act of anal intercourse, and that he did not want to engage in a sex act with the child. However, appellant also admitted his own participation in the charged act, and in the fondling that preceded the act.

After reviewing all of the evidence in the record, we hold the jury's verdict is not against the great weight of the evidence so as to be clearly wrong and unjust. Accordingly, we hold the evidence is factually sufficient to support the jury's verdict. Appellant's fifth issue is overruled.

B. Evidence of Extraneous Offenses

By three issues, appellant contends the trial court erred by admitting evidence of prior sexual assaults by him upon J.G.: (1) without conducting a balancing test as required by Texas Rule of Evidence 403; (2) by finding the prejudicial effect of the extraneous offenses did not exceed the probative value of the evidence; and (3) by failing to give the jury a limiting instruction at the time the extraneous offense evidence was admitted.

1. Admissibility of the Evidence

A trial court is given wide latitude to admit or exclude evidence of extraneous offenses. Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990)(op. on reh'g). An appellate court may not reverse a trial court's ruling as to the admissibility of such evidence if it is within the zone of "reasonable disagreement." Id. at 391. The trial court will be reversed only upon a clear abuse of discretion. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997); Montgomery, 810 S.W.2d at 392.

The code of criminal procedure provides that in a criminal prosecution of a defendant for a sexual offense committed against a child under seventeen years of age,

[n]otwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence,⁽¹⁾ evidence of other crimes, wrongs or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:

(1) the state of mind of the defendant and the child; and

(2) the previous and subsequent relationship between the defendant and the child.

Tex. Code Crim. Proc Ann. art. 38.37, §§ 1, 2 (Vernon Supp. 2000). The special circumstances surrounding the sexual assault of a child victim outweigh the normal concerns associated with evidence of extraneous acts, and the fairness of the tribunal is preserved by a defendant's continuing right to challenge the witness by cross examination. Jenkins v. State, 993 S.W.2d 133, 136 (Tex. App.--Tyler 1999, pet. ref'd). Other acts of misconduct may explain the charged act, an act that would otherwise seem wholly illogical and implausible to the average juror:

[u]nderstandably most jurors are reluctant to believe that parents or others in a parental position would commit sexual or physical crimes against their own or other children. Such evidence not only shows that a peculiar relationship exists, but also how and why the defendant achieved dominance over the child.

Ernst v. State, 971 S.W.2d 698, 700 (Tex. App.--Austin 1998, no pet.).

However, evidence deemed relevant under article 38.37 is subject to the balancing rule found in rule of evidence 403. Relevant evidence must be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403; see Poole v. State, 974 S.W.2d 892, 897 (Tex. App.--Austin 1998, pet. ref'd); Ernst, 971 S.W.2d at 700.

The extraneous offense evidence in this case shows that appellant sexually abused J.G. for nearly four years, beginning when the child was ten years old, and shows the specific pattern the abuse followed. This evidence also incorporates the history of their relationship, showing how appellant skillfully manipulated the boy by showering him with gifts and attention and by exploiting the child's intense desire for a father figure. From this evidence, the jury could posit an explanation as to why J.G. did not report the abuse sooner. It also tends to refute appellant's claim that J.G. alone instigated the act for which appellant was charged, by showing how appellant accustomed J.G. to performing certain sexual acts. Therefore, the evidence had a direct bearing on appellant's and J.G.'s state of mind and on their previous and subsequent history and was admissible under article 38.37.

2. Trial Court's Balancing Test

By his first issue, appellant contends the trial court erred when it permitted the State to introduce evidence of extraneous sexual offenses committed by appellant against J.G., without conducting a balancing test as required by Texas Rule of Evidence 403.

Once the trial court has deemed evidence relevant, the opponent of the evidence must make a further objection based on rule 403 in order for the trial judge to weigh the probative and prejudicial value of the evidence. Santellan, 939 S.W.2d at 169; Montgomery, 810 S.W.2d at 388. If the opponent makes a rule 403 objection, the trial court must weight the probativeness of the evidence to see if it is substantially outweighed by its potential for unfair prejudice. Santellan, 939 S.W.2d at 169; Montgomery, 810 S.W.2d at 389. In keeping with the presumption of admissibility of relevant evidence, there is a presumption that relevant evidence is more probative than prejudicial. Santellan, 939 S.W.2d at 169; Montgomery, 810 S.W.2d at 389.

Appellant made several rule 403 objections at trial and asked the trial court to perform a balancing test. Each time, the trial court responded that the probative value of the extraneous offense evidence outweighed its prejudicial effect, without specifically enumerating the factors he considered. Appellant now argues that the trial court's failure to enunciate its reasoning for finding the evidence admissible under rule 403 constitutes reversible error.

However, the court of criminal appeals has made it clear that a trial court does not need to explain its application of the balancing test:

[a]ppellant complains that the trial judge did not explain his reasoning in conducting the balancing test, and did not require the prosecutor to articulate his reasons for opposing appellant's motion to suppress. When asked whether he had weighed the probative versus the prejudicial value of the evidence, the trial judge stated firmly that he had done so. . . [E]ven when the trial judge does not specify his reasons, on matters of the admissibility of evidence, the court's decision will be upheld if it is correct under any theory.

Santellan, 939 S.W.2d at 170 (citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)). See Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998); Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997); Walker v. State, 4 S.W.3d 98, 103 (Tex. App.--Waco 1999, pet ref'd)(the trial court is not required to place the results of its balancing test on the record). The trial court is presumed to engage in the required balancing test once a party objects on rule 403 grounds and the court rules on the objection, unless the record indicates otherwise. Rojas, 986 S.W.2d at 250; Santellan, 939 S.W.2d at 173; Walker, 4 S.W.3d at 103. Because the record before us does not indicate the trial court did not perform the required balancing test, we overrule appellant's first issue.

2. Probative Versus Prejudicial Value

of Extraneous Offense Evidence

By his second issue, appellant contends the trial court erred in its determination that the probative value of the extraneous offense evidence was not substantially outweighed by its prejudicial effect.

Factors which should go into the rule 403 balancing test include:

(1) how compellingly the extraneous evidence serves to make a fact of consequence more or less probable -- a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense;

(2) the potential the other offense evidence has to impress the jury "in some irrational but nevertheless indelible way;"

3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and

4) the force of the proponent's need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.

Santellan, 939 S.W.2d at 169 (citing Montgomery, 810 S.W.2d at 389-90). As the Santellan court stated:

We will reverse rarely and only upon a clear abuse of discretion. However, we must do more than decide whether the trial judge did in fact conduct the required balancing between probative and prejudicial values; "the trial court's determination must be reasonable in view of all relevant facts."

Id. (citations omitted); see Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999).

The extraneous offense evidence of appellant's long-term sexual abuse of J.G. serves to make more probable a fact of consequence: his intent to cause J.G.'s penis to contact appellant's anus. The evidence presented by the State to show appellant committed the extraneous acts was strong: (1) appellant confessed to the ongoing abuse both at trial and in his statement to the police; and (2) J.G.'s mother testified as to the amount of time her son spent alone with appellant, including numerous overnight visits. "On the other hand, we note the repulsion and horror of the general public toward offenses of this nature, which could potentially affect the jury in an emotional way." See Santellan, 939 S.W.2d at 169 (referring to evidence of an extraneous offense of abuse of a corpse). We note the amount of time the State devoted to showing the extraneous offenses may be significant. However, we conclude the evidence was of vital importance to the State's contention that appellant intentionally or knowingly caused the sexual contact by establishing the pattern of sexual abuse to which appellant had accustomed the victim. In light of these facts, we hold the trial judge did not abuse his discretion in concluding that the danger of unfair prejudice did not substantially outweigh the probative value of this evidence. Appellant's second issue is overruled.

4. Failure to Give Limiting Instruction at Time

Extraneous Offense Evidence was Admitted

By his third issue, appellant contends the trial court erred by failing to give the jury a limiting instruction at the time the extraneous offense evidence was admitted. After his relevance and rule 403 objections were denied, appellant requested a limiting instruction be given to the jury that the evidence of extraneous offenses was admissible only for a limited purpose -- that appellant intentionally or knowingly caused J.G.'s penis to contact appellant's anus. The trial court refused to give the jury an instruction at that time, but included the instruction in the jury charge.

Rule of evidence 105(a) requires that "[w]hen evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly . . . ." Tex. R. Evid. 105(a). Limiting instructions are intended to curb the improper use of evidence and should do so as effectively as possible; logic demands that they should be given at the first opportunity. Rankin v. State, 974 S.W.2d 707, 712 (Tex. Crim. App. 1996). The trial court errs when it refuses a simultaneous limiting instruction when evidence is admitted for a limited purpose. Id. We hold the trial court erred in refusing appellant's request for a limiting instruction at the time the extraneous offense evidence was admitted.

We must next determine the standard of appellate review for such an error. The right to a simultaneous limiting instruction is not granted in either our state or federal constitutions. It is a right created by rule of evidence 105(a). Therefore, the erroneous denial of this right is not the denial of a constitutional right, and must be reviewed under rule of appellate procedure 44.2(b): "Any other error, defect, irregularity or variance that does not affect substantial rights must be disregarded." Tex. R. App. P. 44.2(b); accord, Mendiola v. State, 955 S.W.2d 175, 182-83 (Tex. App.--San Antonio 1999, pet. granted on another issue). A "substantial right" is a right "affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 270-71 (Tex. Crim. App. 1997); Barrera v. State, 10 S.W.2d 743, 746 (Tex. App.--Corpus Christi 2000, no pet. h.). A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

Here, we conclude the trial court's failure to give a limiting instruction at the time of the admission of the extraneous offense evidence did not affect appellant's substantial rights. The court gave the jury a limiting instruction in the jury charge, and the jury is presumed to have obeyed the charge. Lopez v. State, 990 S.W.2d 770, 779 (Tex. App.--Austin 1999, no pet.). Furthermore, in its case-in-chief, the State also presented: (1) a police officer who testified about appellant's statement, which admitted the long term, repetitive nature of his sexual abuse of the victim, and (2) J.G.'s mother, who testified about her son's outcry (which referred to the length of time the abuse had been going on). Appellant's statement to the police was also introduced into evidence. Appellant did not object to the evidence of extraneous offenses contained in the testimony of these witnesses, or in the statement. Appellant himself testified that the sexual abuse began shortly after he met J.G., and described the specifics of the abuse.

On these facts, we hold the error did not have a substantial and injurious effect or influence in determining the jury's verdict. See King, 953 S.W.2d at 270-71. Appellant's third issue is overruled.

C. Jury Charge Error

By his fourth issue, appellant contends the trial court erred by authorizing the jury to find appellant guilty of aggravated sexual assault of a child under the age of fourteen years of age if it found the charged offense occurred during a period of time that the victim was fourteen.

The pertinent portion of the charge states:

You are instructed that the State is not bound by the specific date alleged in an indictment. The date of the offense as alleged is immaterial provided that the offense was comitted [sic] prior to the filing of the indictment, in this case being January 13, 1999, and within the period of the limitations, in this case being ten (10) years. Therefore it is sufficient in this case, if the actual date of the offense was anytime before January 13, 1999, and after January 13, 1989.

A necessary element of the offense of aggravated sexual assault of a child is that the child victim is younger than fourteen years of age. Tex. Pen. Code Ann. art. 22.021(a)(1)(B)(Vernon 2000). The victim testified that his date of birth was December 25, 1983, and he turned fourteen on December 25, 1997. Thus, this portion of the jury charge can be read to authorize the jury to convict appellant of aggravated sexual assault of a child under the age of fourteen years, if the offense occurred during a time when the victim was already over the age of fourteen years, and is, therefore, erroneous.

Generally, an erroneous or incomplete jury charge is reviewed under article 36.19 of the code of criminal procedure,⁽²⁾ which does not implicate state or federal constitutional rights, and Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984), which held that charge error falls within two categories: "fundamental error and ordinary reversible error." Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981); see also Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994). However, appellant contends this charge error is constitutional error and should be analyzed under rule of appellate procedure 44.2(a):

If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.

Tex. R. App. Proc. 44.2(a). A jury charge error can amount to a constitutional due process violation, but this occurs only if there is a reasonable likelihood that the jury understood the instructions to allow conviction on proof insufficient to meet the Winship⁽³⁾ standard. Barrera v. State, 982 S.W.2d 415, 416-17 (Tex. Crim. App. 1998); Gutierrez v. State, 8 S.W.2d 739, 746 (Tex. App.--Austin 1999, no pet.) (charge error offends the federal constitution when, examining the charge as a whole, "there is a reasonable likelihood that the jury understood the instruction to all conviction on proof insufficient to meet the [beyond a reasonable doubt standard]"); see also Mann v. State, 964 S.W.2d 639, 641-42 (Tex. Crim. App. 1998)(analyzing charge error for constitutional error by examining the error in the context of the entire charge). The question in this case is, therefore, whether there is a reasonable likelihood that the jury understood the erroneous charge as a whole to allow conviction of appellant on a charge of aggravated sexual assault of the victim for an act that happened when the victim was fourteen years old.

After reviewing the charge as a whole, we do not find that this error rises to the level of a violation of appellant's due process rights. The indictment alleges the charged offense occurred on or about January 27, 1997, when it is undisputed that the victim was thirteen years old. The jury charge states, in relevant part, as follows:

The [appellant], Carlos Guevara, Jr. stands charged by indictment with the offense of Aggravated Sexual Assault of a Child, alleged to have been committed on or about the 27th day of January, 1997 in Cameron County, Texas.

* * * * *

2.

A person commits aggravated sexual assault if the person commits sexual assault as defined in paragraph 1, above, and the child is younger than fourteen (14) years of age.

3.

Before a conviction would be warranted, for Aggravated Sexual Assault of a Child, it must be shown by the evidence beyond a reasonable doubt that the accused intentionally or knowlingly [sic] caused the sexual organ of [J.G.] to contact the anus of Carlos Guevara, Jr., and that [J.G.] was then and there a child younger than fourteen (14) years.

* * * * *

5.

Now, if you find from the evidence beyond a reasonable doubt that on or about the 27th day of January, 1997, Carlos Guevara, Jr., did then and there intentionally or knowingly cause the sexual organ of [J.G.], a child who was then and there younger than 14 years of age and not the spouse of the defendant, to contact the anus of Carlos Guevara, Jr., then you will find the defendant guilty of the offense of Aggravated Sexual Assault of a Child as alleged in the indictment.

Viewing the jury charge as a whole, we conclude there is no reasonable likelihood that the jury understood the erroneous charge to allow conviction of appellant, if J.G. was over fourteen years of age when the charged act took place. Therefore, we hold there has been no violation of appellant's constitutional right to due process.

Furthermore, appellant did not object to the erroneous portion of the jury charge, and it is well-settled that an appellant who complains on appeal of a unobjected-to, non-constitutional jury charge error will obtain a reversal only if the error is so egregious and created such harm that he has not had a fair and impartial trial. Barrera, 982 S.W.2d at 417; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). It must "go to the very basis of the case," deprive the accused of a "valuable right," or "vitally affect his defensive theory." Almanza, 686 S.W.2d at 172. In making that determination, the appellate court should review the evidence presented at trial, along with "any other part of the record as a whole which may illuminate the actual, not just theoretical, harm to the accused." Id. at 174.

The jury charge in this case states that the appellant was charged with an offense constituting aggravated sexual assault of a child that occurred on or about January 27, 1997; this date was referenced twice in the charge. The correct definitions of the charged offense and reasonable doubt are set forth in the charge, and the law is correctly applied to the facts of the case, as detailed above. Setting the charge in the context of the evidence presented at trial, testimony centered around sexual acts that occurred on or about January 27, 1997, or before that date. Both the victim and his mother testified that they deduced the date of the charged offense by checking records as to the date appellant first babysat the victim when his mother had to go out of town for job training. Appellant himself testified to an act of anal intercourse with J.G. while he babysat J.G. while J.G.'s mother was out of town, and that it "could have" been on January 27, 1997. Appellant also admitted allowing the sexual organ of a child younger than fourteen years of age to contact his anus. While there were several brief references to the fact that appellant's sexual abuse of the victim continued until the summer of 1998 (when the victim was fourteen), we hold that, in light of the evidence presented at trial and the jury charge as a whole, there is no reasonable likelihood the jury convicted the appellant for a sex act occurring after the victim turned fourteen. Therefore, this jury charge error did not cause appellant egregious harm. Under these facts and circumstances, we hold there is no egregious error. Appellant's fourth issue is overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 17th day of August, 2000.

1. Now revised and combined with the old Rules of Civil Evidence into the current Texas Rules of Evidence, effective March 1, 1998.

2. "Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.16. 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal of special charges shall be made at the time of the trial."

3. In re Winship, 397 U.S. 358, 364 (1970)(State must prove all elements of charged offense beyond reasonable doubt in order to obtain conviction in accordance with due process clause).