Wilford Earl Hall, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: January 2, 2019
• Docket: 07-18-00166-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-18-00166-CR

WILFORD EARL HALL, JR., APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 54th District Court McLennan County, Texas Trial Court No. 2016-87-C2 (Counts I - X), Honorable Matt Johnson, Presiding

January 2, 2019

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Appellant Wilford Earl Hall, Jr. was convicted by a jury of four counts of aggravated

sexual assault of a child younger than fourteen,1 five counts of sexual assault of a child

younger than seventeen,2 and indecency with a child younger than seventeen by sexual

1 TEX. PENAL CODE ANN.§ 22.021(a)(1)(B) (West Supp. 2018). 2 TEX. PENAL CODE ANN.§ 22.011(a)(2) (West Supp. 2018). contact.3 Following the convictions, the jury sentenced appellant to life imprisonment for

each count of aggravated sexual assault, twenty years imprisonment for each count of

sexual assault, and twenty years imprisonment for indecency with a child. On appeal,

appellant contends the trial court committed jury charge error causing him egregious

harm. We will affirm the judgments.

Background

Appellant was accused of sexually abusing his daughter, C.M., from age thirteen

to fifteen. C.M. was born in December 1993. Appellant and C.M.’s mother separated

when C.M. was eighteen months old. She lived with her mother after the separation.

C.M. did not see appellant again until a few months before her fourteenth birthday in 2007,

when she was sent to live with appellant. At trial, C.M. testified that appellant sexually

abused her the first day she arrived at his home and continued to abuse her regularly

until she left in November 2009.

Discussion

Appellant claims the trial court reversibly erred by submitting the following jury

instruction: “the State is not bound to prove the exact date alleged in the indictment but

may prove the offenses, if any, to have been committed at any time prior to the filing of

the indictment.” Appellant was indicted on January 20, 2016. He argues the instruction

eliminated the element of the victim’s age from the charge because it allowed the jury to

3 TEX. PENAL CODE ANN.§ 21.11(a)(1) (West Supp. 2018).

2 convict without finding that the sexual acts occurred when C.M. was younger than

fourteen or seventeen. Appellant did not object to the purported charge error at trial.

Standard of Review

We review alleged jury charge error using the procedure set out in Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). First, we determine whether a charge

error occurred. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Then, if we

find error, we evaluate whether the error resulted in harm sufficient for reversal. Id.

When we review a charge for alleged error, we examine the charge as a whole

rather than as a series of isolated and unrelated statements. Dinkins v. State, 894 S.W.2d

330, 339 (Tex. Crim. App. 1995). The charge must contain an accurate statement of the

law and set out all the essential elements of the offense. Id.; TEX. CODE CRIM. PROC. ANN.

art. 36.14 (West 2007). The abstract paragraphs of the charge assist the jury to

understand the concepts and terms used in the application paragraphs. Crenshaw v.

State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012). The application paragraphs of the

charge apply the law to the alleged facts. Vasquez v. State, 389 S.W.3d 361, 366-67

(Tex. Crim. App. 2012). Thus, it is the application paragraphs of the charge, not the

abstract portions, that authorize the jury to make the necessary findings for a conviction.

Crenshaw, 378 S.W.3d at 466.

Analysis

Considering the charge in its entirety, we find that it properly instructed the jury on

the nonbinding dates alleged in the indictment and required them to find that each offense

occurred before C.M. reached the applicable statutory age. For aggravated sexual

3 assault, the State was required to prove the sexual acts occurred before C.M. was

fourteen. TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(2)(B). For sexual assault and

indecency with a child, the State was required to prove the sexual acts occurred before

C.M. was seventeen. TEX. PENAL CODE ANN. §§ 22.011(a)(2), (c)(1); 21.11(a).

The charge begins by informing the jury of the allegations in the indictment.

Appellant was indicted on four counts of aggravated sexual assault occurring on or about

October 1, 2007, five counts of sexual assault occurring on or about November 1, 2008,

and indecency with a child occurring on or about November 1, 2008. The charge then

instructed the jury that these dates were not binding but the State could prove the offenses

were committed before the filing of the indictment on January 20, 2016. This instruction

is an accurate statement of the law as the “on or about” language of an indictment allows

the State to prove a date other than the one alleged so long as the date is prior to the

indictment. Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997).

Next, the application paragraphs for each offense set out the approximate date of

the alleged abuse and the requirement that the jury find that the victim was younger than

fourteen or seventeen when the abuse occurred. For counts one through four, the

application paragraphs required the jury to find that the offense occurred “on or about the

1st day of October, 2007” when C.M. was “younger than fourteen (14) years of age” to

find appellant guilty of the offense. The application paragraphs for counts five through

ten required the jury to find that the offense occurred “on or about the 1st day of

November, 2008” when C.M. was “younger than seventeen (17) years of age” to convict

appellant.

4 Thus, despite appellant’s claim, the jury instruction did not eliminate the element

of the victim’s age from the charge. The jurors were required to find that the abuse

occurred before C.M.’s fourteenth birthday for counts one through four and that the abuse

occurred before her seventeenth birthday for counts five through ten to convict appellant.

Accordingly, we find that the court’s charge did not contain error. See Martin v. State,

335 S.W.3d 867, 874 (Tex. App.—Austin 2011, pet. ref’d) (instruction did not create

charge error where application paragraph required jury to find victim was younger than

fourteen when offense occurred); Siedl v. State, No. 11-16-00258-CR, 2018 Tex. App.

LEXIS 7291, at *9 (Tex. App.—Eastland Aug. 31, 2018, no pet.) (mem. op., not

designated for publication) (holding same).

Finding no error, we need not consider whether appellant was harmed. Appellant’s

issue is overruled.

Conclusion

Having overruled appellant’s sole issue, we affirm the judgments of the trial court.

James T. Campbell Justice

Do not publish.