Court of Appeals Tenth Appellate District of Texas
10-24-00363-CR
Cody Watson, Appellant
v.
The State of Texas, Appellee
On appeal from the 87th District Court of Freestone County, Texas Judge Amy Thomas Ward, presiding Trial Court Cause No. 23-065CR
JUSTICE SMITH delivered the opinion of the Court.
MEMORANDUM OPINION
Following a jury trial, Cody Watson was convicted of the offense of
continuous sexual abuse of a child. See TEX. PENAL CODE ANN. § 21.02. The
jury assessed his punishment at thirty years in prison. On appeal, Watson
raises issues related to jury qualification, the trial court’s denial of his motion
to quash the indictment, improper outcry witness testimony, and jury charge
error. We affirm. Jury Qualification
In his first issue, Watson argues that the trial court erred in failing to
qualify the jury panel as required by article 35.12 of the Code of Criminal
Procedure. See TEX. CODE CRIM. PROC. ANN. art. 35.12.
Article 35.12 requires the trial court, or someone under its direction, to
ask prospective jurors whether they are qualified voters, whether they have
been convicted of a theft or of a felony, and whether they are under indictment
or legal accusation for a theft or a felony. Id. at (a). Watson specifically takes
issue with the trial court’s alleged failure to ask whether the prospective jurors
were convicted of, or under legal accusation for, a theft or felony.
Appellate courts must presume that the jury was properly impaneled
and sworn unless the matter was disputed in the trial court or the record
affirmatively shows the contrary. See TEX. R. APP. P. 44.2(c)(2). Watson
acknowledges that he did not dispute juror qualification in the trial court. In
fact, Watson’s trial counsel affirmatively voiced no objection to the venire
members selected to serve on the jury. Citing generally to the voir dire volume
of the reporter’s record, he claims the record “affirmatively shows” that the
trial court failed to qualify the jury because the record does not document
whether the procedure occurred. Article 35.12 does not require a record of
compliance with its procedures. See TEX. CODE CRIM. PROC. ANN. art. 35.12.
Cody Watson v. The State of Texas Page 2 Moreover, a silent record is not an affirmative showing that the statutory
qualification procedure did not occur. See Osteen v. State, 642 S.W.2d 169, 171
(Tex. Crim. App. 1982). Watson has failed to overcome the Rule 44.2(c)(2)
presumption that the jury was properly qualified.
Watson, however, urges us not to apply the Rule 44.2(c)(2) presumption.
He claims that the Court of Criminal Appeals exceeded its rulemaking
authority in promulgating the rule because the presumption that the jury was
properly qualified abridges and modifies a defendant’s substantive right to a
fair trial. See TEX. GOV’T CODE ANN. § 22.108. Even if we refuse to apply the
presumption as Watson requests, and we further assume that the trial court
did not ask the article 35.12 qualifying questions, Watson’s first issue still fails
for failure to demonstrate harm from this alleged error. Emphasizing the Sixth
Amendment right to a trial by a fair jury, Watson contends that juror
qualification in compliance with article 35.12 is constitutional error subject to
harm analysis under Rule 44.2(a). See TEX. R. APP. P. 44.2(a). Watson does
not identify – and we have not found – any controlling authority holding that
a trial court's failure to ask the qualifying questions in article 35.12 is
constitutional error rather than statutory error. In fact, “many – perhaps most
– statutes are designed to help ensure the protection of one constitutional right
or another. Having such a purpose does not convert a statutory right into a
Cody Watson v. The State of Texas Page 3 one of federal constitutional dimension, much less a right whose violation is
considered to be structural error.” Gray v. State, 159 S.W.3d 95, 97 (Tex. Crim.
App. 2005). We reject Watson’s constitutional-error argument.
We must disregard any non-constitutional error that does not affect the
appellant’s substantial rights. See TEX. R. APP. P. 44.2(b). To demonstrate
harm from failure to qualify the jury, the record must show Watson was
deprived of a lawfully constituted jury of qualified individuals. See Gray v.
State, 233 S.W.3d 295, 298, 301 (Tex. Crim. App. 2007). Watson, claiming that
this is an unworkable standard, does not identify any evidence that any jurors
were unqualified due to being under legal accusation for, or convicted of, a theft
or a felony. We have uncovered no such evidence in our own review of the
record. Watson has thus failed to demonstrate harm.
Accordingly, we overrule Watson’s first issue.
Motion to Quash Indictment
In his second issue, Watson claims that the trial court erred in denying
his motion to quash the indictment. We disagree.
STANDARD OF REVIEW
When reviewing a trial court’s decision to deny a motion to quash an
indictment, we apply a de novo standard of review. See Lawrence v. State, 240
S.W.3d 912, 915 (Tex. Crim. App. 2007).
Cody Watson v. The State of Texas Page 4 ANALYSIS
As relevant to the issue presented on appeal, the indictment alleged as
follows:
… Cody Watson did then and there[,]
during a period that was 30 or more days in duration, to-wit: from on or about the 8th day of December, 2017 through the 8th day of December, 2022, when the defendant was 17 years of age or older, commit two or more acts of sexual abuse against a child younger than 14 years of age, namely,
with the intent to arouse or gratify the sexual desire of the defendant, engage in sexual contact with [A.A.], hereafter styled the complainant, by touching the genitals of the complainant, a child younger than 17 years of age
with the intent to arouse or gratify the sexual desire of the defendant, engage in sexual contact with [A.A.], hereafter styled the complainant, by touching the genitals of the complainant, a child younger than 17 years of age[.]
The day after the jury was empaneled and sworn, Watson filed his
“Motion to Quash and Exception to Substance of the Indictment and Motion to
Quash and Exception to Form of the Indictment.” Watson contended that the
indictment failed to sufficiently inform him of the charge against him and did
not “lay out if [sic] ‘plain and intelligible words’ an alleged criminal act.” The
basis of his complaint was that the predicate offense paragraphs describe
criminal acts against a victim under the age of seventeen, instead of a victim
Cody Watson v. The State of Texas Page 5 under the age of fourteen as required for the offense of continuous sexual abuse
of a child.
After hearing arguments of counsel, the trial court denied the motion to
quash.
If a defendant does not object to a defect, error, or irregularity of form or
substance in an indictment “before the date on which the trial on the merits
commences,” he waives and forfeits the right to object to the defect, error, or
irregularity and may not raise the objection on appeal or in any other post-
conviction proceeding. TEX. CODE CRIM. PROC. ANN. art. 1.14(b). More
specifically, the Court of Criminal Appeals has held that a defendant must
object to any error in the indictment “before the day of trial and certainly before
the jury is empaneled.” Jenkins v. State, 592 S.W.3d 894, 902 (Tex. Crim. App.
2018) (quoting Teal v. State, 230 S.W.3d 172, 178 n.24 (Tex. Crim. App. 2007)).
However, we must determine whether the indictment is constitutionally
sufficient before applying the waiver doctrine as set out in the statute. See
Teal, 230 S.W.3d at 180-81. The question to be asked is: “Can the district court
and the defendant determine, from the face of the indictment, that the
indictment intends to charge a felony or other offense for which a district court
has jurisdiction?” Id. at 181. If so, a defendant must make a pretrial objection
Cody Watson v. The State of Texas Page 6 to a defect in the indictment or forfeit the right to complain about it on appeal.
Smith v. State, 309 S.W.3d 10, 18 (Tex. Crim. App. 2010).
At the top of the indictment are the words “Continuous Sexual Abuse of
Young Child/Children” and “First Degree Felony.” The indictment alleges that
over a period of thirty or more days – specifically from December 8, 2017
through December 8, 2022 – Watson committed two or more acts of sexual
abuse against a child under the age of fourteen while he was at least seventeen
years old. The indictment then goes on to specify that those acts of sexual
abuse involve instances of indecency with a child by sexual contact committed
by Watson touching A.A.’s genitals with the intent to arouse or gratify his
sexual desire. All of the necessary elements of the offense of continuous sexual
abuse of a child were pled. See TEX. PENAL CODE ANN. § 21.02. The trial court
and defendant could conclude that the indictment charged a felony offense and
that the district court had jurisdiction of the offense.1 Accordingly, to preserve
this issue for appellate review, Watson needed to object to the indictment
before trial commenced. Here, the jury was empaneled and trial commenced
on November 4, 2024. Watson filed his motion to quash the indictment on
November 5, 2024.
1 We note that Watson does not challenge the sufficiency of the two predicate paragraphs alleging the
felony offense of indecency with a child by contact, which would also vest the trial court with jurisdiction.
Cody Watson v. The State of Texas Page 7 Because Watson failed to make a timely objection before the date on
which the trial on the merits commenced, he forfeited any right to object to any
alleged defect or error in the indictment. Accordingly, his second issue is
overruled.
Outcry Witness Testimony
In his third issue, Watson asserts that the trial court erred by
designating A.A.’s former assistant principal as the outcry witness under
article 38.072 of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC.
ANN. art. 38.072. We find the trial court’s error to be harmless.
STANDARD OF REVIEW AND APPLICABLE LAW
We review a trial court’s designation of an outcry witness for an abuse of
discretion. See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990).
Article 38.072 of the Code of Criminal Procedure provides a statutory
exception to the rule against hearsay for prosecutions of certain sexual
offenses. See TEX. CODE CRIM. PROC. ANN. art. 38.072. This statute permits
testimony from the first person eighteen years of age or older, other than the
defendant, to whom the child made a statement about the offense. Id. at § 2(a).
Courts have construed a statement “about the offense” to mean a statement
that “in some discernible manner describes the alleged offense” and is more
than “a general allusion” of sexual abuse. Garcia, 792 S.W.2d at 91. The
Cody Watson v. The State of Texas Page 8 statute requires the trial court to hold a hearing outside of the jury’s presence
to determine whether the statement is reliable based on the time, content, and
circumstances of the statement. See TEX. CODE CRIM. PROC. ANN. art. 38.072,
§ 2(b)(2).
RELEVANT FACTS
Prior to the article 38.072 hearing, defense counsel objected to “not
having been properly noticed under article 38.072” because the State simply
attached the offense report to its notice instead of providing a summary of the
statement made to the outcry witness. See id. at §2(b)(1)(C).
At the outcry hearing, A.A.’s former assistant principal at Fairfield
Junior High testified that in December of 2022, A.A. “approached [her] about
a situation she wanted to discuss.” The assistant principal confirmed that A.A.
“explain[ed] an allegation of sexual abuse” perpetrated by Watson and that she
was the first person A.A. spoke with about the abuse. No further details about
the alleged abuse were provided during the hearing. The trial court found that
the assistant principal “meets the requirements” and ruled that she could
testify as the outcry witness. Defense counsel then reiterated, “Based on my
objection to the notice on 38.072, I have to object to this being a proper outcry
witness[.]” The trial court overruled this objection and granted a running
objection.
Cody Watson v. The State of Texas Page 9 At trial, the assistant principal testified that A.A. approached her before
school on December 8, 2022, and asked to speak with her in her office. While
walking to the office, A.A.’s lip began to quiver and she appeared upset. The
assistant principal sat down with A.A. and asked what was wrong. A.A. told
her, “my stepdad touched me down there,” while pointing down to her “pubic
area.” The assistant principal stated that A.A. told her the abuse happened
more than once over the course of multiple years, with the last incident
occurring sometime around Thanksgiving.
ANALYSIS
On appeal, Watson contends that the trial court abused its discretion by
designating the assistant principal as the outcry witness because the assistant
principal’s testimony at the outcry hearing was no more than a general allusion
that sexual abuse occurred. Stated another way, he contends that the State
did not meet its burden at the article 38.072 hearing to demonstrate that A.A.
made a “statement about the offense” to the assistant principal in order to
make her testimony admissible under the statute. Watson argues the
assistant principal’s testimony was harmful because it bolstered A.A.’s
credibility when his defensive theory at trial was that A.A. fabricated her claim
of sexual abuse.
Cody Watson v. The State of Texas Page 10 Assuming without deciding that this issue was preserved for our review2,
we agree that the trial court erred in designating the assistant principal as the
outcry witness based on the testimony provided at the article 38.072 hearing.
No testimony was presented demonstrating that A.A. described the sexual
abuse “in some discernible manner” to the assistant principal. See Garcia, 792
S.W.2d at 91. The statement that A.A. “explain[ed] an allegation of sexual
abuse” is nothing more than a general allusion that something in the area of
child abuse was occurring and did not provide a basis for the trial court to
reasonably determine whether “the statement is reliable based on the […]
content” of the statement. TEX. CODE CRIM. PROC. ANN. art 38.072, § 2(b)(2).
However, we hold that the admission of the assistant principal’s outcry
testimony was harmless. The erroneous admission of hearsay testimony under
article 38.072 is non-constitutional error. Rosales v. State, 548 S.W.3d 796,
808 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d). Such error is harmless
if we are reasonably assured that the error did not influence the verdict or had
but a slight effect. Id. Where the same or similar evidence is admitted without
objection elsewhere during trial, the error is harmless. Id.
2 Watson’s objection at trial does not comport with his issue on appeal. See TEX. R. APP. P. 33.1 (a). His complaint at trial was that the State failed to provide proper notice under article 38.072 of the content of the assistant principal’s expected testimony, not that the State failed to meet its burden under article 38.072 to demonstrate that A.A. made more than a “general allusion” of sexual abuse to the assistant principal.
Cody Watson v. The State of Texas Page 11 Here, the same or similar evidence was admitted without objection
through A.A.’s testimony. A.A. testified that the family lived in Cayuga when
she was in the second grade through fourth grade, during which time Watson
sexually assaulted her on three occasions by rubbing her vagina underneath
her clothing with his hand. A.A. explained that the family moved to Fairfield
in 2020, where Watson continued to touch her vagina with his hand “almost
every day.” She recalled that the last incident of sexual abuse occurred
approximately three weeks before she outcried to the assistant principal in
2022. The jury heard directly from A.A. and was in the best position to judge
her credibility, regardless of the outcry testimony. See id. at 809. In light of
A.A’s detailed testimony concerning the acts of sexual abuse, we are reasonably
assured that any error in the admission of the outcry testimony did not
influence the jury's verdict, or had but a slight effect and was harmless.
Watson’s third issue is overruled.
Jury Charge Error
In his fourth issue, Watson asserts that the guilt-innocence jury charge
contained an erroneous definition of “sexual contact” and that he was
egregiously harmed by this unobjected-to error. Assuming without deciding
that the jury charge contained error, we find that Watson was not egregiously
harmed.
Cody Watson v. The State of Texas Page 12 STANDARD OF REVIEW
A claim of jury charge error is reviewed using the procedure set out in
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). The first step
is to determine whether there is error in the charge. Ngo v. State, 175 S.W.3d
738, 743 (Tex. Crim. App. 2005). If there is error but the appellant failed to
object, the error in the charge is reviewed only for egregious harm. Id. at 743-
44. Egregious harm means that the error “affects ‘the very basis of the case,’
deprives the defendant of a ‘valuable right,’ or ‘vitally affect[s] a defensive
theory.’” Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006) (citing
Almanza, 686 S.W.2d at 172). A defendant must have suffered actual harm,
not theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App.
2012).
To determine if the charge error resulted in egregious harm, we review
“the entire jury charge, the state of the evidence, including the contested issues
and weight of probative evidence, the argument of counsel and any other
relevant information revealed by the record of the trial as a whole.” Almanza,
686 S.W.2d at 171.
Cody Watson v. The State of Texas Page 13 ANALYSIS
As relevant here, a predicate “act of sexual abuse” for the offense of
continuous sexual abuse of a child includes an act constituting indecency with
a child under section 21.11(a)(1) of the Penal Code.3 See TEX. PENAL CODE
ANN. § 21.02(c)(2). Indecency with a child under section 21.11(a)(1) is
committed when a person engages in “sexual contact” with a child. See id. at
§ 21.11(a)(1). The general definitions applicable to offenses in Chapter 21 of
the Penal Code are listed in section 21.01. See id. at § 21.01. In Chapter 21,
“sexual contact” means “except as provided by section 21.11 or 21.12, any
touching of the anus, breast, or any part of the genitals of another person with
intent to arouse or gratify the sexual desire of any person.” Id. at § 21.01(2)
(emphasis added). Indecency with a child under section 21.11 contains its own
definition of “sexual contact,” namely, as relevant here, “any touching by a
person, including touching through the clothing, of the anus, breast, or any
part of the genitals of a child” with the intent to arouse or gratify the sexual
desire of any person. Id. at § 21.11(c)(1).
Here, the abstract portion of the jury charge used the general definition
of “sexual contact” from section 21.01(2) of the Penal Code. As charged, the
predicate “acts of sexual abuse” were acts constituting indecency with a child
3 As long as the offense was committed in a manner other than touching the breast of the child. See id.
Cody Watson v. The State of Texas Page 14 under section 21.11; therefore, Watson argues, the appropriate statutory
definition of “sexual contact” was the more specific definition applicable to
offenses under section 21.11.
Watson acknowledges that this alleged error was not objected to in the
trial court and that the “egregious harm” standard applies.
In reviewing the state of the evidence, we consider the contested issues
and weight of the probative evidence “to determine whether the evidence made
it more or less likely that the jury charge caused appellant actual harm.”
Arrington v. State, 451 S.W.3d 834, 841 (Tex. Crim. App. 2015). The primary
difference between the general definition of “sexual contact” and the specific
definition from section 21.11(c)(1) is the maximum permissible age of the
victim of the sexual contact. Watson concedes that “[t]he disputed evidence
was whether [he] committed this offense, not the age of the parties.” Indeed,
A.A. was undisputedly a child under the age of fourteen during the dates of
offense alleged. She was thirteen years old when she outcried to her assistant
principal. This factor thus weighs against a finding of egregious harm.
Watson also asserts that “under this charge, there was no requirement
that the person who the defendant touch [sic] was a child.” This is incorrect.
The application paragraph provided, in relevant part:
[I]f you find from the evidence beyond a reasonable doubt that, during a period that was thirty (30) days or more in duration, to-
Cody Watson v. The State of Texas Page 15 wit: from on or about the 8th day of December, 2017 to the 8th day of December, 2022, in Freestone County, Texas, the Defendant, CODY WATSON, when he was seventeen (17) years of age or older, did commit two or more of the following acts of sexual abuse against a child, namely [A.A.], who at the time was a child younger than fourteen (14) years of age, to-wit:
The Defendant did then and there, with the intent to arouse or gratify the sexual desire of the defendant, engage in sexual contact with [A.A.], hereafter styled the complainant, by touching the genitals of the complainant, a child younger than 14 years of age;
AND/OR
The Defendant did then and there, with the intent to arouse or gratify the sexual desire of the defendant, engage in sexual contact with [A.A.], hereafter styled the complainant, by touching the genitals of the complainant, a child younger than 14 years of age;
then you will find the Defendant guilty of the offense of Continuous Sexual Abuse of a Young Child as alleged in the indictment[.]
(emphasis added). The application paragraph expressly required the jury to
find beyond a reasonable doubt that Watson touched A.A.’s genitals with the
intent to arouse or gratify his sexual desire when A.A. was a child younger
than fourteen years old.
In his analysis on the jury charge as a whole, Watson discusses the trial
court’s instruction on juror notetaking. He asserts that the notetaking
instruction failed to substantially comply with the Court of Criminal Appeals’
suggested instruction in Price v. State, 887 S.W.2d 949, 955 (Tex. Crim. App.
Cody Watson v. The State of Texas Page 16 1994), and permitted misuse of juror notes during deliberations. Without
identifying any evidence in the record that any juror misused his or her notes
during deliberations, or explaining how this notetaking instruction has any
relation to the “sexual contact” definition at the center of his issue presented
on appeal, he then makes the conclusory statement that the jury charge
“supports a finding of egregious harm.” We disagree. In reviewing the jury
charge as a whole, we find that the broader definition of “sexual contact” was,
as discussed above, properly restricted in the application paragraph to apply
only to a child under the age of fourteen. This factor weighs against a finding
of egregious harm.
We also consider whether any statements made during the trial by the
prosecutor, the defense counsel, or the trial court may have exacerbated or
ameliorated the error in the jury charge. Arrington, 451 S.W.3d at 844.
Watson concedes that the attorneys did not argue the meaning of sexual
contact.
Considering the four Almanza factors, we find that Watson was not
egregiously harmed by the trial court’s use of the general definition of “sexual
contact” in the abstract portion of the jury charge. Accordingly, his fourth issue
is overruled.
Cody Watson v. The State of Texas Page 17 Conclusion
Having overruled all of Watson’s issues on appeal, we affirm the
judgment of the trial court.
STEVE SMITH Justice
OPINION DELIVERED and FILED: January 29, 2026 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed Do not publish CRPM
Cody Watson v. The State of Texas Page 18