Logan Wesley v. the State of Texas

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-20-00098-CR

LOGAN WESLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 202nd District Court Bowie County, Texas Trial Court No. 20F0055-202

Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION

Logan Wesley1 was charged with sexually assaulting Sylvia Hanes, Jamie Cook, and Jane

Parker when they were children.2 The charges related to all three victims were tried in a single,

consolidated jury trial in Bowie County, Texas.3 In total, the jury found Wesley guilty of five

counts of aggravated sexual assault of a child, nine counts of sexual assault of a child, and two

counts of indecency with a child by contact. The trial court sentenced Wesley to five life

sentences and 220 years in prison, with all the sentences to run consecutively.

Here, Wesley appeals from his two convictions related to Jane Parker: one count of

indecency with a child by contacting her breast with his hand and one count of sexual assault of a

child by penetrating her sexual organ with his finger. Wesley argues that the trial court’s failure

to include a specific unanimity charge in the jury instructions was egregiously harmful.

We modify the sexual-assault judgment to state the correct statute of offense and affirm

that judgment, as modified, and we affirm the indecency judgment, without modification,

because, if the trial court erred, it was not egregiously harmful.

While the judgment renders Wesley’s name in this way, other documents in the clerk’s record include “III” in 1

Wesley’s name. 2 To protect the identity of the victims, who were minors at the time of the alleged abuse, we refer to them by pseudonyms. See TEX. R. APP. P. 9.10(a)(3) 3 The convictions related to victim Hanes are on appeal under our cause number 06-20-00096-CR and include three counts of aggravated sexual assault of a child under fourteen, three counts of sexual assault of a child under seventeen, and one count of indecency with a child by contact. The convictions related to victim Cook are on appeal under our cause number 06-20-00097-CR and include two counts of aggravated sexual assault of a child under fourteen and five counts of sexual assault of a child under seventeen. The convictions related to victim Parker are on appeal under our cause number 06-20-00098-CR and include one count each of indecency with a child by contact and sexual assault of a child. 2 (1) The Asserted Charge Error Was Not Egregiously Harmful

The testimony and evidence produced during the trial of this case were detailed in this

court’s opinion in a companion case, issued on this date under the style Wesley v. State, cause

number 06-20-00096-CR.

In his sole point of error in this case, Wesley contends that a specific unanimity

instruction was required because he “was found guilty of two counts of indecency with a child

(by contact)” and “the victim provided numerous possible events that could establish these

offenses.”4 However, this argument is based on an incorrect premise, as Wesley was not

convicted of two counts of indecency; Wesley was convicted of one count of indecency with a

child by “touching the breast of the complainant . . . with [his] hand” and one count of sexual

assault of a child by “penetration of the sexual organ of Jane Parker . . . by [his] finger.”

However, we address Wesley’s argument to the extent it applies to his conviction for indecency

by contact.

“We employ a two-step process in our review of alleged jury charge error.” Murrieta v.

State, 578 S.W.3d 552, 554 (Tex. App.—Texarkana 2019, no pet.) (citing Abdnor v. State, 871

S.W.2d 726, 731 (Tex. Crim. App. 1994)). “Initially, we determine whether error occurred and

then evaluate whether sufficient harm resulted from the error to require reversal.” Id. (quoting

Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor, 871

S.W.2d at 731–32)).

4 Wesley did not demand that the State elect which specific criminal conduct it relied on for each charged offense. 3 “[T]he jury is the exclusive judge of the facts, but it is bound to receive the law from the

court and be governed thereby.” Id. (quoting TEX. CODE CRIM. PROC. ANN. art. 36.13). “A trial

court must submit a charge setting forth the ‘law applicable to the case.’” Id. (quoting Lee v.

State, 415 S.W.3d 915, 917 (Tex. App.—Texarkana 2013, pet. ref’d) (quoting TEX. CODE CRIM.

PROC. ANN. art. 36.14)). “The purpose of the jury charge . . . is to inform the jury of the

applicable law and guide them in its application. It is not the function of the charge merely to

avoid misleading or confusing the jury: it is the function of the charge to lead and prevent

confusion.” Id. (quoting Lee, 415 S.W.3d at 917 (quoting Delgado v. State, 235 S.W.3d 244,

249 (Tex. Crim. App. 2007))).

One of the charges Wesley was convicted for was indecency with a child by “touching

the breast of the complainant . . . with [his] hand.” Here, the application paragraphs of the

court’s charge tracked the language of the indictment, but the only mention of unanimity is made

in the closing paragraph of the charge, stating, “Your verdict must be unanimous, and when

reached, you will notify the bailiff in the manner instructed and the Court will send for you and

your verdict will be received in open court.”

“Texas law requires that a jury reach a unanimous verdict about the specific crime that

the defendant committed.” Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011). “This

means that the jury must ‘agree on a single and discrete incident that would constitute the

commission of the offense alleged.’” Id. (quoting Stuhler v. State, 218 S.W.3d 706, 717 (Tex.

Crim. App. 2007)). “[N]on-unanimity may occur when the State charges one offense and

presents evidence that the defendant committed the charged offense on multiple but separate

4 occasions.” Id. at 772. However, when more than one incident of criminal conduct could be

relied on for conviction, a general instruction on unanimity is insufficient. Arrington v. State,

451 S.W.3d 834, 841 (Tex. Crim. App. 2015). Because “[e]ach of the multiple incidents

individually establishes a different offense or unit of prosecution, . . . [t]he judge’s charge, to

ensure unanimity, would need to instruct the jury that its verdict must be unanimous as to a

single offense or unit of prosecution among those presented.” Id.

Here, Parker testified to multiple, separate instances where he touched her breasts in the

pastor’s office, in the playroom, and at Grady T. Wallace Park. Therefore, the jury was

presented with evidence of different instances where Wesley touched her breasts with his hands.

The State did not explicitly state which of the specific instances satisfied which count, and

Wesley did not demand that the State make such election. Thus, “[t]he jury could have relied on

separate incidents of criminal conduct, which constituted different offenses or separate units of

prosecution,” in finding Wesley’s guilt on a particular charge. See Cosio, 353 S.W.3d at 774.

Therefore, the trial court was required to instruct the jury that its verdict had to be unanimous as

to each single unit of prosecution—each of the seven counts in the indictment. See id.;

Arrington, 451 S.W.3d at 839. However, the trial court submitted only a general unanimity

instruction; “[t]he jury may have believed that it had to be unanimous about the offenses, not the

criminal conduct constituting the offenses.” Cosio, 353 S.W.3d at 774. Because this created the

possibility of a non-unanimous verdict, the jury charge was erroneous. See id.; Arrington, 451

S.W.3d at 839.

5 “The level of harm necessary to require reversal due to jury charge error is dependent

upon whether the appellant properly objected to the error.” Murrieta, 578 S.W.3d at 555 (citing

Abdnor, 871 S.W.2d at 732). “Here, because [Wesley] did not object to the charge, we will not

reverse the judgment unless the record shows the error resulted in egregious harm, Ngo v. State,

175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005) (citing Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1984) (op. on reh’g), such that he did not receive a fair and impartial trial.” Id.

(citing Almanza, 686 S.W.2d at 171; Loun v. State, 273 S.W.3d 406, 416 (Tex. App.—Texarkana

2008, no pet.)). “Jury-charge error is egregiously harmful if it affects the very basis of the case,

deprives the defendant of a valuable right, or vitally affects a defensive theory.” Id. (quoting

Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007)). “In making this determination,

we review ‘the entire jury charge, the state of the evidence, the argument of counsel, and any

other relevant information in the record as a whole.’” Id. (quoting Villarreal v. State, 205

S.W.3d 103, 106 (Tex. App.—Texarkana 2006, pet. dism’d, untimely filed) (citing Almanza, 686

S.W.2d at 171)). “Direct evidence of harm is not required to establish egregious harm.” Id.

(citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)).

First, we examine the error in light of the entire jury charge. Here, as found above, the

charge “permitted non-unanimous verdicts based on evidence presented in the case.” Tiller v.

State, 578 S.W.3d 143, 148 (Tex. App.—Texarkana 2019, no pet.) (quoting Arrington, 451

S.W.3d at 841). The only mention of unanimity in the charge was general, boilerplate language

at the end of the charge that stated, “Your verdict must be unanimous, and when reached, you

will notify the bailiff in the manner instructed and the Court will send for you and your verdict

6 will be received in open court.” Therefore, a review of the entire charge weighs in favor of

finding egregious harm.

Significant evidence supported the jury’s verdict finding Wesley guilty of indecency by

touching. Under Texas law, Parker’s testimony alone was sufficient to support the jury’s verdict

on the indecency charge. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (Supp.). Wesley started

abusing her not long after she started attending his church at age nine. Parker testified that

Wesley abused her “hundreds” of times, including several different instances of Wesley touching

her breast when she was anywhere from nine years old to eleven years old. She testified that

Wesley touched her breasts when he got her alone in the pastor’s office and in the playroom.

Parker testified in detail that, on the night of a revival service, Wesley was driving her home in

the white church van, and he drove the two of them to Grady T. Wallace Park in Bowie County,

Texas, where he undressed her, touched her breasts, and put his fingers in her vagina. She was

eleven years old at the time.

Weighing in Wesley’s favor was his own testimony and that of his family members. His

family members denied ever seeing or knowing of him behaving inappropriately with Parker.

Wesley denied ever touching Parker inappropriately. He testified that any claim of abuse in the

white church van occurring before 2002 was false because the church did not obtain the van until

2002. Wesley testified that Parker got off the church van with her brothers, so she could not

have been dropped off last and alone. Wesley’s nephew testified that Cook could never have

been the last person dropped off by the church van, because he and Wesley’s children were

always the last ones dropped off, as they were going to Wesley’s house.

7 Thus, the jury was faced with a “he said, she said” situation because the jury had to

choose whether to believe Parker and the evidence supporting her testimony or Wesley and his

family members. See Arrington, 451 S.W.3d at 841. Wesley’s theory of the case and his

decision to testify “left the jury with an all-or-nothing decision, either he was guilty or he was

not.” Id. at 842. Had the jury believed Wesley and his version of the events, they would have

acquitted him. See id. at 844. However, by finding Wesley guilty of indecency, the jury clearly

rejected Wesley’s defensive theory and the witnesses testifying in support of it. Therefore, the

state of the evidence weighs against a finding of egregious harm. See id. at 842, 844 (citing Ruiz

v. State, 272 S.W.3d 819, 826–27 (Tex. App.—Austin 2008, no pet.); Cosio, 353 S.W.3d at 777–

78).

Neither party’s arguments contributed to or emphasized the charge error by telling the

jury it did not have to be unanimous about the criminal conduct constituting each offense. “The

parties also did not ameliorate the error by explaining what was required for a unanimous

verdict.” Tiller, 578 S.W.3d at 149. Accordingly, this factor is neutral. See Arrington, 451

S.W.3d at 844. Further, after reviewing the entire record, we find no other relevant information

favoring a finding of egregious harm. Having weighed these factors, we overrule this point of

error because we are unable to find that the charge error affected the basis of the case, deprived

Wesley of a valuable right, or affected a defensive theory. See Ngo, 175 S.W.3d at 743–44

(quoting Stuhler, 218 S.W.3d at 719).

Wesley’s point of error in this case is overruled.

8 (2) The Judgment Should be Modified to Reference the Correct Penal Code Provisions

The trial court’s nunc pro tunc judgment for Wesley’s conviction of sexual assault of a

child indicates that the statute for the offense is “21.11 PENAL CODE.”

The Texas Rules of Appellate Procedure give this Court authority to modify judgments

and correct typographical errors to make the record speak the truth. TEX. R. APP. P. 43.2; French

v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Battle v. State, No. 06-07-00148-CR,

2008 WL 482343, at *3 (Tex. App—Texarkana Feb. 25, 2008, no pet.) (mem. op., not

designated for publication) (reforming judgment to reflect proper statute under which defendant

should have been convicted); Gray v. State, 628 S.W.2d 228, 233 (Tex. App.—Corpus Christi

1982, pet. ref’d). Whether the issue was raised by the parties, this Court may act sua sponte to

modify an incorrect judgment.

In this case, one of Wesley’s convictions was for one count of sexual assault of a child,

an offense found in Section 22.021 of the Texas Penal Code, however, the nunc pro tunc

judgment of conviction refers to Section 21.11, the statute for indecency with a child, as the

“Statute for Offense.” See TEX. PENAL CODE ANN. §§ 21.11, 22.021. Therefore, so that the nunc

pro tunc judgment reflects conviction under the correct statute, we modify the nunc pro tunc

judgment for sexual assault of a child by replacing Section 21.11 with Section 22.021.

9 As modified, the trial court’s judgments are affirmed.

Josh R. Morriss, III Chief Justice

Date Submitted: March 30, 2021 Date Decided: December 16, 2021

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