In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-17-00395-CR _______________________
JUAN JAIME GARCIA-MARTINEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 16-06-07393-CR
MEMORANDUM OPINION
A jury convicted Appellant Juan Jaime Garcia-Martinez of indecency with a
child. See Tex. Penal Code Ann. § 21.11(a)(1) (West 2019).1 The court assessed
punishment at fifteen years of confinement. In three issues, Garcia-Martinez
challenges his conviction. We affirm.
1 We cite the current statutes herein because amendments to the statute made after Garcia-Martinez’s offense do not affect our disposition. 1 Underlying Facts
A grand jury indictment alleged 2 that Garcia-Martinez
. . . on or about June 21, 2016, and before the presentment of this indictment, in the County and State aforesaid, did then and there, with intent to arouse and gratify the sexual desire of the Defendant, engage in sexual contact by touching the genitals of V.M., a child younger than 17 years of age[.]
Garcia-Martinez pleaded “not guilty.” Garcia-Martinez was tried and convicted by
a jury in September of 2017. The record from the trial court shows that Garcia-
Martinez never objected to the jury charge or to his sentence until he filed a motion
for new trial. The motion for new trial was filed after Appellant had filed his notice
of appeal with this Court.
Testimony of Rachel Fischer
Rachel Fischer explained that she is a forensic nurse for Memorial Hermann
Health System and that she is a board-certified Sexual Assault Nurse Examiner
(SANE) for children, adolescents, and adults. Fischer testified that she conducted a
forensic medical exam on V.M. on June 21, 2016, and that V.M. was seven years
old at that time. According to Fischer, V.M. told her “When I was watching cartoons,
2 We use initials to refer to the alleged victim and family members. See Tex. Const. art. I, § 30 (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 2 my dad touched me where he was not supposed to. He touched me right here. . . . He
touched with his finger, and he pushed it inside. He touched on top of my shorts, but
it hurt when his finger went inside.” Fischer also testified that V.M. said her dad’s
name was Eric. Fischer testified that V.M. pointed to her female genitalia during this
report. V.M. did not indicate to Fischer that any other person had done this other
than Garcia-Martinez. Fischer testified that her examination of V.M.’s inner genital
region identified redness, point tenderness, and pain. According to Fischer, the
genital redness and point tenderness she observed was consistent with V.M.’s report
of how Garcia-Martinez touched her.
Testimony of C.G.
C.G. testified that she was seventeen years old and that V.M. is her younger
half-sister and K.M. is her younger half-brother. C.G. explained that V.M. and
K.M.’s father was J.M., but that J.M. had left the family, and after their mother
started dating Garcia-Martinez, K.M. and V.M. called Garcia-Martinez “dad” and
that he goes by the name “Eric” in addition to “Juan Garcia.” C.G. testified that, due
to the age difference between herself and her younger siblings, she has a lot of
responsibility around the home and she is “like a second mom to them.” According
to C.G., at the time of the incident, her mother worked two jobs at restaurants.
3 C.G. recalled that the incident occurred the day after V.M.’s birthday, that her
mother had to work, and that she, V.M., K.M., and Garcia-Martinez were at the
house. At one point in the afternoon, C.G. saw Garcia-Martinez touching her sister
“where he wasn’t supposed to,” and C.G. “freaked out.” C.G. testified that she saw
Garcia-Martinez’s hand between V.M.’s legs, under V.M.’s shorts, and “[i]n her
private part.” C.G. testified that she pretended she did not see anything and called
V.M. to help her clean. According to C.G., Garcia-Martinez pulled his hand away
and pretended he was not doing anything, but C.G. stated she “clearly saw what he
was doing.”
C.G. explained that, although she called V.M. to help her clean, she did not
really need help with cleaning and she wanted to get V.M. out of the situation. C.G.
testified that she took V.M. to the bedroom and asked if Garcia-Martinez touched
her where he was not supposed to, and V.M. responded that he had and V.M. said
“[p]romise you won’t tell mom.” According to C.G., she sent their mother a text
about what had happened, and her mother instructed her to leave the house with the
children and wait outside because the police were on their way, and she did as
instructed. C.G. testified that she thought V.M. looked scared when the police
arrived, and that V.M. cried when Garcia-Martinez was arrested. C.G. explained
that, after the police left, the family went to Memorial Hermann for V.M. to be
4 checked. About a week later, the family went to Children’s Safe Harbor. According
to C.G., following the incident, V.M.’s grades dropped.
Testimony of V.M.’s Mother
V.M.’s Mother testified that she lived in Conroe with her three children and
that she previously worked as a shift manager at a restaurant. The Mother testified
that at the time of V.M.’s seventh birthday, she was dating Garcia-Martinez, and she
identified the defendant as Garcia-Martinez. According to V.M.’s Mother, at the
time of the incident, Garcia-Martinez had not been working, she went to work at the
restaurant, and Garcia-Martinez was at her home with her three children. V.M.’s
Mother testified that she received a text from C.G. just before her shift was ending,
and she immediately told her boss she was leaving, she called the police, and she
went home. The Mother testified that she instructed C.G. to take the other children
outside to play. According to the Mother, she gave a statement to the police, and
after Garcia-Martinez was arrested, Mother took V.M. to Memorial Hermann as the
police had told her to do.
V.M.’s Mother testified that although V.M. has talked about the incident, it
was not easy for her to talk about it at first, and that V.M. would get upset and cry.
Mother stated that at first, V.M.’s attitude changed and she was a little bit defiant,
5 but V.M. has gotten better. According to the Mother, V.M. never told her the incident
did not occur.
Testimony of Mayra Domingue
Mayra Domingue testified that she is a forensic interviewer at Children’s Safe
Harbor and that she interviewed V.M. on June 30, 2016, when V.M. was seven years
old. After Domingue established rapport with V.M., she began to talk about the
incident, and Domingue noticed a change in V.M.’s demeanor:
She became very -- she sighed a lot. There was less eye contact. She became very fidgety. She talked a little softer. She kind of moaned when asked questions like she was irritated.
....
. . . a lot of heavy sighing. A lot of not wanting to talk, telling me she didn’t know, and she didn’t want to talk about those things.
Domingue testified that V.M. said “that her cosita was touched[,]” which was how
V.M. referred to her female sexual organ. Domingue explained as follows:
Q. When she talked to you about the abuse, did she tell you who was the person that did things to her?
A. Yes, ma’am.
Q. Who was that? Who did she identify?
A. She said her dad Eric.
6 Domingue testified that in her subsequent interview with C.G., C.G.’s account was
consistent with V.M.’s.
Testimony of V.M.
V.M. was eight years old at the time of trial. V.M. testified that she recalled
that Garcia-Martinez touched her “privates[]” when she was at home and sitting on
the couch, and the touching felt “[w]eird.” According to V.M., her older sister C.G.
was in the bedroom “doing clothes” when the touching occurred, and after C.G. saw
what happened, C.G. asked V.M. to come help with the clothes. V.M. testified that
C.G. instructed her not to go back to the couch but to play with her tablet until their
Mother came home, and V.M. felt sad at the time. According to V.M., her Mother
looked sad and mad when she got home, and three police vehicles arrived at the
home. V.M. stated that she watched Garcia-Martinez go with the police, after which
she went to a “big place where there’s doctors” where they checked her “where [she]
go[es] to the restroom.” V.M. also testified that a lady talked with her about her body
parts to be sure she was okay. V.M. testified that C.G. told her that C.G. “saw
everything[,]” and saw Garcia-Martinez touching her.
Testimony of Detective Shannon Acosta
Shannon Acosta testified that she is a detective with the Montgomery County
Sheriff’s Office and she works at Children’s Safe Harbor where she investigates
7 cases of child physical and sexual abuse. Acosta stated that she was assigned to
V.M.’s case. According to Detective Acosta, there was an eyewitness—C.G.—in
this case, and eyewitnesses to sexual abuse are rare. Acosta testified that a SANE
exam was done immediately after the incident, and the exam identified certain signs
of trauma, namely pain and redness, in the “[i]nside and lower” part of the genitalia.
Testimony of Garcia-Martinez
Garcia-Martinez testified that on the day of the incident, he was not working
and he stayed at home with the children. He further testified that V.M. sat on the
couch next to him while they were watching TV. Garcia-Martinez did not recall his
hand on V.M.’s leg, and he thought perhaps he had fallen asleep, and there is no
reason his hand would have touched V.M. while he was sleeping because “[a]
sleeping body, it doesn’t move.” At another point, Garcia-Martinez explained as
follows:
Q. So you said yesterday that maybe when you fell asleep that’s when your hand went in between [V.M.’s] legs?
A. I was sleeping. I fell asleep. I mean, I don’t know. I didn’t notice if my hand did something like that. I don’t know what they saw. But it was not my intention. I don’t know if I touched her or not, but it was not my intention when I fell asleep.
Q. And so you don’t remember touching [V.M.]?
A. No.
8 Garcia-Martinez testified that things may have been misinterpreted or imagined
because he was not able to hurt a girl. Garcia-Martinez also agreed that he thought
C.G. and V.M. were lying about him touching V.M. According to Garcia-Martinez,
C.G. might have had a grudge against him because he told her and her boyfriend to
stop hugging in public so much while the family was out for dinner one night, and
that after the incident in the restaurant, C.G. was moody and did not talk to him the
same way.
The jury found Garcia-Martinez guilty, and the court assessed punishment at
fifteen years of confinement. Following entry of judgment, Garcia-Martinez’s
attorney filed a motion to withdraw, which the trial court granted, and a new attorney
was appointed. Garcia-Martinez’s new attorney filed a notice of appeal and
subsequently filed a motion for new trial, which the trial court denied.
Excessive Punishment
In his first issue, Appellant argues that his sentence of fifteen years is cruel
and unusual under the Texas and United States Constitution because the sentence
imposed exceeds the gravity of the offense, Appellant’s sentence “far exceeds
sentences for similar offenses in the same jurisdiction[,]” and there was no evidence
that Appellant had any prior criminal history. In his brief, Appellant cites two Texas
cases in which the defendant was convicted of aggravated sexual assault of a child
9 and received shorter sentences than Appellant did in the case at bar;3 however, he
did not cite any authority or cases in his motion for new trial.
In reviewing a trial court’s sentencing determination, we afford the trial court
“a great deal of discretion[.]” See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim.
App. 1984). Generally, a sentence that is within the range of punishment established
by the legislature is not unconstitutionally cruel or unusual and will not be disturbed
on appeal. See State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016) (citing
Ex parte Chavez, 213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006.
Appellant was convicted of indecency with a child, a second-degree felony,
and the statutory punishment range authorized by the Texas Legislature for such
offense is imprisonment of “not more than 20 years or less than 2 years[]” and “a
fine not to exceed $10,000.” See Tex. Penal Code Ann. §§ 12.33 (West 2019),
21.11(a)(1), (d). Because Appellant’s sentence fell within the statutory range, there
is no reason to compare his sentence to sentences imposed on others. See Simpson,
3 Appellant’s brief cited Alvarez v. State, Nos. 13-11-00773-CR & 13-11- 00774-CR, 2012 Tex. App. LEXIS 7005 (Tex. App.—Corpus Christi Aug. 21, 2012, pet. ref’d) (mem. op., not designated for publication), in which the defendant received a sentence of ten years’ imprisonment for each of two counts of aggravated sexual assault of a child and five counts of aggravated sexual assault of a child, and Perinon v. State, 54 S.W.3d 848 (Tex. App.—Corpus Christi 2001, no pet.), in which the defendant received a sentence of ten years’ imprisonment for aggravated sexual assault of a child. 10 488 S.W.3d at 323 (citing Graham v. Florida, 560 U.S. 48, 60 (2010); McGruder v.
Puckett, 954 F.2d 313, 316 (5th Cir. 1992)). We nonetheless note numerous other
instances in which defendants have received longer sentences within the statutory
range for the offense of indecency with a child. See generally, e.g., James v. State,
No. 01-13-00770-CR, 2014 Tex. App. LEXIS 6525 (Tex. App.—Houston [1st Dist.]
June 17, 2014, pet. ref’d) (mem. op., not designated for publication) (defendant
sentenced to twenty years’ confinement); Romero v. State, No. 09-09-00294-CR,
2010 Tex. App. LEXIS 5735 (Tex. App.—Beaumont July 21, 2010, pet. ref’d)
(mem. op., not designated for publication) (defendant sentenced to twenty years’
confinement and fined $10,000); Robertson v. State, No. 05-96-02038-CR, 1998
Tex. App. LEXIS 3826 (Tex. App.—Dallas June 26, 1998, no pet.) (mem. op., not
designated for publication) (defendant sentenced to twenty years’ confinement).
On this record, we cannot say that Appellant’s sentence is grossly
disproportionate to his offense. See Simpson, 488 S.W.3d at 322-23. Even if the
sentence could be considered harsh, Appellant did not present evidence that it was
unconstitutional. See Randall v. State, 529 S.W.3d 566, 569 (Tex. App.—Houston
[14th Dist.] 2017, no pet.).4 Accordingly, we overrule Appellant’s first issue.
4 To the degree that there was additional evidence that could have persuaded the trial court to assess a lesser sentence, it was incumbent upon Appellant to present 11 Jury Charge
We address Appellant’s second and third issues together as both pertain to the
jury charge. Appellant’s second issue argues that the jury charge was improper for
instructing the jury “Your sole duty at this time is to determine the guilt or innocence
of the Defendant under the indictment . . . .” We understand Appellant to argue that
this portion of the jury charge tasked the jury with determining “guilt or innocence,”
as stated in section 2 of article 37.07 instead of determining whether the defendant
was “guilty or not guilty,” as provided for in section 1 of article 37.07. See Tex.
Code Crim. Proc. art. 37.07 (West Supp. 2018) Appellant’s third issue argues that
section 2(a) of article 37.07 is unconstitutional as applied to him because using the
word “innocence” violated due process by shifting the burden to the defendant and
instructing the jury to consider the defendant’s actual innocence rather to presume
innocence.
Appellant did not raise these objections prior to the submission to the jury or
prior to the jury’s verdict, although he raised them in a post-trial motion for new trial
filed after his notice of appeal had been filed. Generally, the failure to timely object
that evidence during the punishment hearing. See State v. Simpson, 488 S.W.3d 318, 324 (Tex. Crim. App. 2016). 12 to an alleged error in a jury charge constitutes a waiver of that error. Tex. R. Civ. P.
272.
Where an appellant raises jury charge error on appeal, the degree of harm
necessary for reversal depends on whether the appellant preserved the error by a
timely objection at trial. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App.
1996). When, as here, the defendant fails to object or states in the trial court that he
has no objection to the charge, we will not reverse for jury-charge error unless the
record shows “egregious harm” to the defendant. See State v. Ambrose, 487 S.W.3d
587, 595 (Tex. Crim. App. 2016) (“[U]npreserved jury-charge error does not require
a new trial, even when the error is complained of in a motion for new trial, unless
the error causes ‘egregious harm.’”); Ngo v. State, 175 S.W.3d 738, 743-4 (Tex.
Crim. App. 2005) (citing Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004);
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). “Errors that result
in egregious harm are those that affect ‘the very basis of the case,’ ‘deprive the
defendant of a valuable right,’ or ‘vitally affect a defensive theory.’” Ngo, 175
S.W.3d at 750 (quoting Hutch, 922 S.W.2d at 171). An appellant must have suffered
actual harm, not merely theoretical harm. See Sanchez v. State, 376 S.W.3d 767, 775
(Tex. Crim. App. 2012) (citing Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim.
App. 1986)). We review jury charge error by a two-step process. Ngo, 175 S.W.3d
13 at 744. First, we determine whether error exists in the jury charge. Id. Second, we
determine whether sufficient harm was caused by the error to require reversal. Id.
Several of our sister courts have concluded that a jury instruction like the one
in this case is not erroneous. See Avila v. State, 15 S.W.3d 568, 576-77 (Tex. App.—
Houston [14th Dist.] 2000, no pet.); Flores v. State, 920 S.W.2d 347, 357 (Tex.
App.—San Antonio 1996), pet. dism’d, improvidently granted, 940 S.W.2d 660
(Tex. Crim. App. 1996) (per curiam); Barnes v. State, 855 S.W.2d 173, 175 (Tex.
App.—Houston [14th Dist.] 1993, pet. ref’d). 5 The instruction is clearly designed to
focus the jury’s attention on the first phase of the bifurcated criminal trial—the
“guilt-or-innocence” phase—and to direct the jury away from consideration of other
issues, including punishment. See Barnes, 855 S.W.2d at 175. The State’s burden of
proof was not changed by the instruction; the Appellant was still presumed innocent,
and the State was still required to prove the guilt of the defendant. See Flores, 920
S.W.2d at 357. The jury charge expressly instructed the jury that “[t]he burden of
proof in all criminal cases rests upon the State throughout the trial and never shifts
5 See also Monk v. State, No. 06-18-00051-CR, 2018 Tex. App. LEXIS 8345, at **2-7 (Tex. App.—Texarkana Oct. 12, 2018, pet. ref’d) (mem. op., not designated for publication); Turner v. State, No. 05-17-00015-CR, 2018 Tex. App. LEXIS 5351, at **8-11 (Tex. App.—Dallas July 16, 2018, pet. ref’d) (mem. op., not designated for publication); Harrison v. State, No. 01-97-01408-CR, 1999 Tex. App. LEXIS 3690, at **8-9 (Tex. App.—Houston [1st Dist.] May 13, 1999, no pet.) (not designated for publication). 14 to the defendant[]” and “[a]ll persons are presumed to be innocent and no person
may be convicted of an offense unless each element of the offense is proved beyond
a reasonable doubt.” We join our sister courts and conclude that the challenged jury
charge was not erroneous.
Appellant acknowledges the above holdings of our sister courts. He also notes
that the Texas Criminal Pattern Jury Charges have been amended “to use the
preferred language of ‘guilty or not guilty.’” See State Bar of Texas, Texas Criminal
Pattern Jury Charges—General, Evidentiary & Ancillary Instructions, § 2.1 (2015).
In this case, the trial court instructed, in relevant part, as follows:
A Grand Jury indictment is the means whereby a defendant is brought to trial in a felony prosecution. It is not evidence of guilt nor can it be considered by you in passing upon the question of guilt of the defendant. The burden of proof in all criminal cases rests upon the State throughout the trial and never shifts to the defendant.
All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with the offense gives rise to no inference of guilt at his trial. The law does not require a defendant to prove his innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial consideration of all the evidence in the case.
15 Your sole duty at this time is to determine the guilt or innocence of the Defendant under the indictment in this cause; restrict your deliberations solely to the issue of guilt or innocence of the Defendant.
The pattern jury charge would instruct as follows:
The defendant is presumed innocent of the charge. All persons are presumed to be innocent, and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The law does not require a defendant to prove his innocence or produce any evidence at all. Unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial consideration of all the evidence in the case, the presumption of innocence alone is sufficient to acquit the defendant.
The law requires that you render a verdict of either “guilty” or “not guilty.” The verdict of “not guilty” simply means that the state’s evidence does not prove the defendant guilty beyond a reasonable doubt.
Id.
Appellant provides no authority to compel a finding that the trial court erred
in using language that differed from the pattern jury charges, nor are we aware of
any. See Tex. R. App. P. 38.1(i) (an appellate brief must support its arguments with
citations to the record and to relevant authority). The purpose of pattern jury charges
is “to assist the bench and bar in preparing the court’s charge in jury cases[]” and the
pattern instructions are “suggestions and guides” that “have no official status.” State
Bar of Texas, Texas Criminal Pattern Jury Charges—General, Evidentiary &
16 Ancillary Instructions, Introduction. “Appellate courts are unlikely to regard trial
judges’ refusal to use the Committee’s jury instructions as reversible error.” Id.
Having found no error, we need not determine whether any harm resulted. See
Ngo, 175 S.W.3d at 743 (“[I]f we find error, we analyze that error for harm.”).
Nevertheless, even assuming the trial court erred by including the challenged
language in the jury charge, the Appellant must establish egregious harm.
To determine whether egregious harm resulted, we examine “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. In this
case, as we have explained, the jury charge properly instructed the jury of the State’s
burden of proof and the necessity for proof beyond a reasonable doubt for a guilty
verdict. V.M. testified that Appellant touched her privates, and C.G. testified that
she observed Appellant put his hand in V.M.’s shorts. The SANE testified that in
her examination of V.M., she observed redness, tenderness, and pain consistent with
V.M.’s report that the Appellant touched her privates: redness, point tenderness, and
pain. Considering the entirety of the record, we find no egregious harm, and
Appellant has not demonstrated that his trial was so fundamentally flawed that it
violated due process. See id. We overrule Appellant’s second issue.
17 Appellant’s third issue raises an as-applied challenge to section 2(a) of article
37.07. See Tex. Code Crim. Proc. Ann. art. 37.07, § 2(a). Appellant contends that
the included language and the statute from which it is derived are unconstitutional
because he was denied “due process” rights when the trial court included the
language from section 2(a) of article 37.07 in the charge. Appellant argues that the
language “negates elements of the crime that the State must prove to convict
appellant of the charged offense” and it “shifts the burden” to the defendant to prove
innocence or asks the jury to consider and decide actual innocence rather than
whether the State has proven the defendant guilty beyond a reasonable doubt.
According to Appellant, the presumption of innocence is part of the right to a fair
trial guaranteed by the Sixth and Fourteenth Amendments. Appellant did not make
this argument during the trial but did make the argument in his motion for new trial.
As-applied constitutional claims are subject to the preservation requirement
and must be raised in the trial court to preserve error. Reynolds v. State, 423 S.W.3d
377, 383 (Tex. Crim. App. 2014) (citing Karenev v. State, 281 S.W.3d 428, 434
(Tex. Crim. App. 2009); Flores v. State, 245 S.W.3d 432, 437 n.14 (Tex. Crim. App.
2008); Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004); Curry v. State,
910 S.W.2d 490, 496 & n.2 (Tex. Crim. App. 1995); Briggs v. State, 789 S.W.2d
918, 924 (Tex. Crim. App. 1990) (stating that “[e]ven constitutional errors may be
18 waived by failure to object at trial”)). An as-applied challenge to the constitutionality
of a statute asserts that a statute, although generally constitutional, operates
unconstitutionally as to the claimant because of his facts and circumstances. See
Faust v. State, 491 S.W.3d 733, 743-44 (Tex. Crim. App. 2015) (citing State ex rel.
Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011); Gillenwaters v. State,
205 S.W.3d 534, 536 n.3 (Tex. Crim. App. 2006)). When reviewing the
constitutionality of a statute, we presume that the statute is valid and that the
Legislature acted reasonably in enacting it. Id. (citing Rodriguez v. State, 93 S.W.3d
60, 69 (Tex. Crim. App. 2002)). Because of the presumption of constitutionality, the
burden rests on the challenger to establish the statute’s unconstitutionality as applied
to him. See Schlittler v. State, 488 S.W.3d 306, 313 (Tex. Crim. App. 2016).
Resolving an as-applied challenge “‘requires a recourse to evidence[,]’” and the
challenger bears the burden of producing evidence to “specifically demonstrat[e]
that the law in question is unconstitutional as ‘applied to him[.]’” See Estes v. State,
546 S.W.3d 691, 698 (Tex. Crim. App. 2018) (quoting Fine, 330 S.W.3d at 910)).
We have previously explained that we do not find error in the trial court’s
inclusion of the challenged language. Jury instructions that are not legally erroneous
but could be subject to an erroneous application are reviewed to determine “whether
there is a reasonable likelihood that the jury has applied the challenged instruction”
19 in an erroneous way. See Luquis v. State, 72 S.W.3d 355, 367 n.37 (Tex. Crim. App.
2002) (quoting Boyde v. California, 494 U.S. 370, 380 (1990)). Reviewing courts
should consider the entire jury charge and trial record and use common sense in
determining whether there is a reasonable likelihood that the jury was misled. See
Almanza, 686 S.W.2d at 171; Mireles v. State, 901 S.W.2d 458, 460 (Tex. Crim.
App. 1995); see also Trevino v. State, 474 S.W.3d 737, 747, 2014 Tex. App. LEXIS
11598 (Tex. App.—Beaumont 2014, pet. ref’d) (mem. op., not designated for
publication). We generally presume the jury followed the trial court’s instructions
as given, and we will not reverse in the absence of evidence that the jury was actually
misled or confused by the charge. See Williams v. State, 937 S.W.2d 479, 490 (Tex.
Crim. App. 1996); Bui v. State, 68 S.W.3d 830, 842 (Tex. App.—Houston [1st Dist.]
2002, no pet.) (considering a claim that the jury charge was unconstitutional as
applied to the defendant and concluding that “[e]ven if the first sentence of the
charge were considered erroneous, the charge, as a whole, prevented any possible
misunderstanding the jury could have had[]”).
Here, Appellant failed to make this objection during the trial, and he failed to
explain or produce evidence with his motion for new trial specifically demonstrating
that the statute operates unconstitutionally as applied to him because of his particular
facts and circumstances. See Faust, 491 S.W.3d at 743-44. In reviewing the entire
20 record before us, there is nothing in the record suggesting a reasonable likelihood
that the jury was confused in any way by the challenged instruction nor does
Appellant point to any such evidence in the record. There is no evidence that the jury
did not follow the trial court’s clear and explicit instructions regarding the State’s
burden of proof and the presumption of innocence. See Luquis, 72 S.W.3d at 368;
Bui, 68 S.W.3d at 842; Jackson v. State, No. 02-14-00346-CR, 2015 Tex. App.
LEXIS 9071, at **3-5 (Tex. App.—Fort Worth Aug. 27, 2015, pet. ref’d) (mem. op.,
not designated for publication).
For the same reasons explained earlier, we also reject Appellant’s argument
that he was denied “due process” under the law by the inclusion of the complained-
of instruction in the jury charge. Appellant did not meet his burden to specifically
demonstrate that the law in question—article 37.07, section 2(a)—is
unconstitutional as applied to him. See Estes, 546 S.W.3d at 698. We overrule his
third issue.
Having overruled all Appellant’s issues, we affirm the trial court’s judgment.
AFFIRMED.
_________________________ LEANNE JOHNSON Justice
21 Submitted on March 14, 2019 Opinion Delivered May 1, 2019 Do Not Publish
Before Kreger, Horton, and Johnson, JJ.