In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-23-00099-CR ________________
GARY MOTTER II, Appellant
v.
THE STATE OF TEXAS, Appellee ________________________________________________________________________
On Appeal from the 411th District Court San Jacinto County, Texas Trial Cause No. CR12,645 ________________________________________________________________________
MEMORANDUM OPINION
Gary Motter II (“Motter”) appeals his convictions for aggravated sexual
assault of a child. See Tex. Penal Code Ann. § 22.021(a)(1)(B). In two issues, Motter
complains that the trial court improperly denied his request to remove instructions
on the law of aggravated sexual assault of a child and that the State engaged in
improper closing argument to the jury that prejudiced him. As discussed more fully
below, we affirm the trial court’s judgment.
1 Background
In August 2018, a San Jacinto County grand jury indicted Motter for two
counts of aggravated sexual assault of a child, first degree felonies. See id. §
22.021(e). Specifically, in count one, Motter was charged with intentionally and
knowingly causing the penetration of the anus of his stepdaughter, Helen. 1 In count
two, Motter was charged with intentionally and knowingly causing the penetration
of the mouth of Helen. At his jury trial, the State presented seven witnesses including
Patricia Schofield, the SANE nurse that examined Helen; Omar Sheikh, a detective
with the San Jacinto County Sheriff’s Office; Amy McCorkle, an investigator with
the Montgomery County District Attorney’s Office; Kaitlyn Gomez, a forensic
interviewer with Children’s Safe Harbor; Shauna Joseph, a forensic scientist with
the Texas Department of Public Safety Crime Lab; Mother, Helen’s mother and
Motter’s ex-wife; and Helen, the victim. The defense presented five witnesses
including Charles Hammersla, Motter’s friend; Nancy Freeze, Motter’s
grandmother; James Lumpkin, Jr., a friend and former housemate of Motter and his
ex-wife; Dawn Woods, the mother of Motter’s young daughter; and Dr. Kit
1We refer to the crime victim by pseudonym, and we refer to their family
members by their relationship to the victim to protect the victim’s privacy. See Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to be treated with fairness and with respect for the victim’s identity and privacy throughout the criminal justice process”). 2 Harrison, a licensed psychologist. The jury returned a verdict of guilty as to both
counts of aggravated sexual assault of a child.
Four months later, the punishment hearing was held. At the punishment
hearing, the State presented three witnesses. The witnesses were Mother, Helen, and
Jessica Gailey, a woman who alleges Motter raped her in Arkansas. The defense
presented five witnesses including Nancy Freese, Motter’s grandmother; Threasa
King, Motter’s aunt; Toni Sinclair, Motter’s great uncle; Dystinie Johnson, Motter’s
niece; and Dawn Woods, the mother of Motter’s young daughter. At the conclusion
of the punishment hearing, the trial judge sentenced Motter to forty years in prison.
This appeal followed.
Analysis
In his first issue, Motter argues that language in the jury charge regarding the
law of aggravated sexual assault of a child should have been removed or simplified.
We review a claim of alleged jury charge error using a two-step process in which we
examine (1) whether error existed in the charge and (2) whether sufficient harm
resulted from the error to require reversal. Ngo v. State, 175 S.W.3d 738, 743–44
(Tex. Crim. App. 2005) (en banc). Here, Motter properly objected to the charge at
trial, and therefore a jury charge error requires reversal if we find “some harm” to
his rights. See id. at 743 (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim.
App. 1996); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). The
3 Almanza standard requires that an appellant show actual, and not theoretical, harm
from jury instruction error. Ngo, 175 S.W.3d at 750; see also Cornet v. State, 417
S.W.3d 446, 449 (Tex. Crim. App. 2013).
Motter argues that he was harmed by the trial judge’s denial of his request to
remove a portion of the recitation of the relevant statute. The jury charge stated:
A person commits an aggravated sexual assault of a child, regardless of whether the person knows the age of the child at the time of the offense, if the person intentionally or knowingly causes the penetration of the anus of a child by any means when the victim was then and there younger than 14 years of age.
A person commits an aggravated sexual assault of a child, regardless of whether the person knows the age of the child at the time of the offense, if the person intentionally or knowingly causes the penetration of the mouth of a child by any means when the victim was then and there younger than 14 years of age.
To prove that the defendant is guilty of aggravated sexual assault of a child, as alleged in Count I of the indictment, the state must prove, beyond a reasonable doubt, two elements. The elements are that—
1. the defendant intentionally or knowingly caused the penetration of the anus of [Helen] with the defendant’s sexual organ; and 2. [Helen] was at the time a child younger than fourteen years ago.
To prove that the defendant is guilty of aggravated sexual assault of a child, as alleged in Count II of the indictment, the state must prove, beyond a reasonable doubt, two elements. The elements are that—
1. the defendant intentionally or knowingly caused the penetration of the mouth of [Helen] with the defendant’s sexual organ; and
4 2. [Helen] was at the time a child younger than fourteen years ago.
With regard to element 2, it does not matter whether the defendant knew the child was younger than fourteen years old at the time of the offense.
Motter argues that the italicized paragraphs were cumulative and are “almost
a comment on the weight of the evidence in favor of the State.” Motter argues that
the italicized paragraphs go beyond defining the relevant statutes to the jury and tend
to mislead the jury.
Generally, a jury charge that tracks the language of the relevant statute is
sufficient and therefore not erroneous. See Casey v. State, 215 S.W.3d 870, 886–87
(Tex. Crim. App. 2007); Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim. App.
1996); Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994) (“A jury charge
which tracks the language of a particular statute is a proper charge on the statutory
issue.”). The court in Casey concluded that the trial court did not comment on the
weight of the evidence because “the jury charge tracked the language of the statute.”
Casey, 215 S.W.3d at 886–87. “The purpose of the jury charge, of course, is to
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In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-23-00099-CR ________________
GARY MOTTER II, Appellant
v.
THE STATE OF TEXAS, Appellee ________________________________________________________________________
On Appeal from the 411th District Court San Jacinto County, Texas Trial Cause No. CR12,645 ________________________________________________________________________
MEMORANDUM OPINION
Gary Motter II (“Motter”) appeals his convictions for aggravated sexual
assault of a child. See Tex. Penal Code Ann. § 22.021(a)(1)(B). In two issues, Motter
complains that the trial court improperly denied his request to remove instructions
on the law of aggravated sexual assault of a child and that the State engaged in
improper closing argument to the jury that prejudiced him. As discussed more fully
below, we affirm the trial court’s judgment.
1 Background
In August 2018, a San Jacinto County grand jury indicted Motter for two
counts of aggravated sexual assault of a child, first degree felonies. See id. §
22.021(e). Specifically, in count one, Motter was charged with intentionally and
knowingly causing the penetration of the anus of his stepdaughter, Helen. 1 In count
two, Motter was charged with intentionally and knowingly causing the penetration
of the mouth of Helen. At his jury trial, the State presented seven witnesses including
Patricia Schofield, the SANE nurse that examined Helen; Omar Sheikh, a detective
with the San Jacinto County Sheriff’s Office; Amy McCorkle, an investigator with
the Montgomery County District Attorney’s Office; Kaitlyn Gomez, a forensic
interviewer with Children’s Safe Harbor; Shauna Joseph, a forensic scientist with
the Texas Department of Public Safety Crime Lab; Mother, Helen’s mother and
Motter’s ex-wife; and Helen, the victim. The defense presented five witnesses
including Charles Hammersla, Motter’s friend; Nancy Freeze, Motter’s
grandmother; James Lumpkin, Jr., a friend and former housemate of Motter and his
ex-wife; Dawn Woods, the mother of Motter’s young daughter; and Dr. Kit
1We refer to the crime victim by pseudonym, and we refer to their family
members by their relationship to the victim to protect the victim’s privacy. See Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to be treated with fairness and with respect for the victim’s identity and privacy throughout the criminal justice process”). 2 Harrison, a licensed psychologist. The jury returned a verdict of guilty as to both
counts of aggravated sexual assault of a child.
Four months later, the punishment hearing was held. At the punishment
hearing, the State presented three witnesses. The witnesses were Mother, Helen, and
Jessica Gailey, a woman who alleges Motter raped her in Arkansas. The defense
presented five witnesses including Nancy Freese, Motter’s grandmother; Threasa
King, Motter’s aunt; Toni Sinclair, Motter’s great uncle; Dystinie Johnson, Motter’s
niece; and Dawn Woods, the mother of Motter’s young daughter. At the conclusion
of the punishment hearing, the trial judge sentenced Motter to forty years in prison.
This appeal followed.
Analysis
In his first issue, Motter argues that language in the jury charge regarding the
law of aggravated sexual assault of a child should have been removed or simplified.
We review a claim of alleged jury charge error using a two-step process in which we
examine (1) whether error existed in the charge and (2) whether sufficient harm
resulted from the error to require reversal. Ngo v. State, 175 S.W.3d 738, 743–44
(Tex. Crim. App. 2005) (en banc). Here, Motter properly objected to the charge at
trial, and therefore a jury charge error requires reversal if we find “some harm” to
his rights. See id. at 743 (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim.
App. 1996); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). The
3 Almanza standard requires that an appellant show actual, and not theoretical, harm
from jury instruction error. Ngo, 175 S.W.3d at 750; see also Cornet v. State, 417
S.W.3d 446, 449 (Tex. Crim. App. 2013).
Motter argues that he was harmed by the trial judge’s denial of his request to
remove a portion of the recitation of the relevant statute. The jury charge stated:
A person commits an aggravated sexual assault of a child, regardless of whether the person knows the age of the child at the time of the offense, if the person intentionally or knowingly causes the penetration of the anus of a child by any means when the victim was then and there younger than 14 years of age.
A person commits an aggravated sexual assault of a child, regardless of whether the person knows the age of the child at the time of the offense, if the person intentionally or knowingly causes the penetration of the mouth of a child by any means when the victim was then and there younger than 14 years of age.
To prove that the defendant is guilty of aggravated sexual assault of a child, as alleged in Count I of the indictment, the state must prove, beyond a reasonable doubt, two elements. The elements are that—
1. the defendant intentionally or knowingly caused the penetration of the anus of [Helen] with the defendant’s sexual organ; and 2. [Helen] was at the time a child younger than fourteen years ago.
To prove that the defendant is guilty of aggravated sexual assault of a child, as alleged in Count II of the indictment, the state must prove, beyond a reasonable doubt, two elements. The elements are that—
1. the defendant intentionally or knowingly caused the penetration of the mouth of [Helen] with the defendant’s sexual organ; and
4 2. [Helen] was at the time a child younger than fourteen years ago.
With regard to element 2, it does not matter whether the defendant knew the child was younger than fourteen years old at the time of the offense.
Motter argues that the italicized paragraphs were cumulative and are “almost
a comment on the weight of the evidence in favor of the State.” Motter argues that
the italicized paragraphs go beyond defining the relevant statutes to the jury and tend
to mislead the jury.
Generally, a jury charge that tracks the language of the relevant statute is
sufficient and therefore not erroneous. See Casey v. State, 215 S.W.3d 870, 886–87
(Tex. Crim. App. 2007); Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim. App.
1996); Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994) (“A jury charge
which tracks the language of a particular statute is a proper charge on the statutory
issue.”). The court in Casey concluded that the trial court did not comment on the
weight of the evidence because “the jury charge tracked the language of the statute.”
Casey, 215 S.W.3d at 886–87. “The purpose of the jury charge, of course, is to
inform the jury of the applicable law and guide them in its application to the case.”
Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007) (internal quotations
omitted) (citations omitted).
Article 36.14 of the Code of Criminal Procedure requires that a trial court
provide a jury charge “distinctly setting forth the law applicable to the case[.]” Tex. 5 Code Crim. Proc. Ann. art. 36.14. Here, the charge sets forth the law applicable to
the case by tracking the language of the statute. See Casey, 215 S.W.3d at 886-87.
“Following the law as it is set out by the Texas Legislature will not be deemed error
on the part of a trial judge.” Martinez, 924 S.W.2d at 699 (citation omitted). We
overrule Motter’s first issue.
Next, Motter argues that the State engaged in improper jury argument during
closing arguments that prejudiced the Defendant. According to Motter, the State
instructed the jury that in order to acquit Motter, the jury would have to determine
that Helen “was a liar” instead of instructing the jury that they would need to
determine whether the State had proven all of the elements of the charged offenses.
Motter argues that the State’s comment improperly shifted the burden to Motter, and
the trial judge failed to instruct the jury to disregard the improper argument. Motter
further argues that the State’s argument improperly bolstered the testimony of Helen
and Mother and improperly instructed the jury on what it had to decide.
The transcript from the trial proves that during the State’s closing arguments,
the following exchange occurred:
[State]: Finally, folks, for the defense to be correct – and there is no other way around this – [Helen] has to be a liar. For the defense to be correct, that girl has to be a liar. A liar who –
[Defense]: Judge, I object. He is reversing the burden of proof and saying that for the defense to be correct – it is the State’s burden of proof and beyond a reasonable doubt to show that the allegations in the indictment are true, not for the defense to show anything. 6 The Court: Okay. The jury will rely on the charge it was given. The evidence that was introduced – the arguments of lawyers are not evidence.
Here, the trial court instructed the jury to rely on the instructions in the jury
charge and told the jury that the arguments of lawyers are not evidence. We presume
the jury followed the trial court’s instruction to disregard the complained-of
argument. See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005)
(discussing in the context of a limiting instruction). We conclude that the prejudicial
effect of the State’s argument, if any, “w[as] not so indelible” that the jury would
have ignored the trial court’s instruction. See Archie v. State, 340 S.W.3d 734, 739
(Tex. Crim. App. 2011). “The law generally presumes that instructions to disregard
and other cautionary instructions will be duly obeyed by the jury.” Id. at 741; see
also Adams v. State, 156 S.W.3d 152, 157 (Tex. App.—Beaumont 2005, no pet.)
(“In most instances, the trial court’s instruction to disregard cures any harm.”).
Additionally, the jury charge included a “Presumption of Innocence” section that
detailed that “defendant is presumed innocent of the charge” and included a “Burden
of Proof” section that detailed that it was the State’s burden to prove Motter guilty
of the offenses. On this record, we conclude that the State’s remark had little, if any,
prejudicial effect, and that the measures taken to cure any prejudice were adequate
to cure any harm. We overrule issue two.
7 Conclusion
Having overruled all Motter’s issues, we affirm the trial court’s judgment.
AFFIRMED.
W. SCOTT GOLEMON Chief Justice
Submitted on January 3, 2025 Opinion Delivered May 14, 2025 Do Not Publish
Before Golemon, C.J., Johnson and Wright, JJ.