Opinion filed July 27, 2017

In The

Eleventh Court of Appeals 

__________

No. 11-16-00014-CR

__________

EARNIE LEE RANDELL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 350th District Court

Taylor County, Texas

Trial Court Cause No. 11915-D

M E M O R A N D U M O P I N I O N

A jury convicted Appellant of continuous sexual abuse of a young child and 

assessed his punishment at confinement for twenty-five years. The trial court 

sentenced him accordingly. On appeal, Appellant asserts that the trial court provided 

an erroneous jury charge that egregiously harmed him because it allowed the jury to 

convict him based on acts that occurred before September 1, 2007, which was the 

effective date of Section 21.02 of the Texas Penal Code, the continuous sexual abuse

statute. See TEX. PENAL CODE ANN. § 21.02 (West Supp. 2016). We affirm. 
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I. Evidence at Trial

The grand jury returned an indictment against Appellant for the offense of 

continuous sexual abuse of a child and alleged that Appellant had sexually abused

his grandchildren, PSEUPRR and C.R.,

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for several years. At trial, Appellant 

testified and denied the charges against him. Appellant claimed PSEUPRR had 

fabricated her claim of abuse. Appellant testified that the alleged inappropriate 

contact was wholly innocent and misunderstood. For instance, Appellant claimed 

that the incident that occurred in the garage was simply the result of a playful game, 

not abuse as alleged by PSEUPRR.

The jury heard evidence from the victims as well as PSEUPRR’s mother, 

PSEUPRR’s counselor, and Appellant’s wife. The abuse of PSEUPRR began in 

2005 and continued through 2012, while the abuse of C.R. began in 2011 and 

continued through 2013.

PSEUPRR testified that Appellant began to abuse her when she was five or 

six years old and that the abuse ended around the time she turned thirteen. She 

explained that Appellant sexually abused her in her grandparents’ bathroom, 

bedroom, and garage. She could not recall the exact dates of these assaults. Instead, 

she relied on her age and important events to provide the jury with an approximation 

of the dates of the assaults, but she did tie some assaults to specific date ranges. For 

instance, in 2006, PSEUPRR’s family moved to another home and she recalled that 

the sexual abuse began after that move. PSEUPRR testified that, during this time,

Appellant abused her approximately three times a week. In 2008, PSEUPRR’s 

parents took a vacation to Florida, and she stayed with her grandparents, during 

which time Appellant sexually assaulted her. Her family moved again in 2009, and 

she testified that the abuse occurred only a few times thereafter. The other victim, 

C.R., also struggled to recall specific dates because of her youth, but she did recall 

 

1PSEUPRR and C.R. are pseudonyms used for the victims in this case.
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specific acts of abuse and testified that Appellant’s abuse began when she was either 

three or four years old.

PSEUPRR’s mother recalled PSEUPRR’s outcry. After PSEUPRR’s outcry, 

Tatum Woodson counseled her. Woodson described how she worked with 

PSEUPRR to improve her mental state and ease the mental trauma caused by her 

abuse. Finally, Appellant’s wife revealed that she had noticed that Appellant 

occasionally behaved suspiciously around PSEUPRR, but she never suspected 

sexual abuse until PSEUPRR made an outcry. She also revealed that some of 

Appellant’s statements seemed to incriminate him. For example, Appellant pleaded 

with his wife to reconcile with him after PSEUPRR’s outcry, and he cried and said,

“God, what have I done?” Later in a similar exchange, Appellant’s wife brought up 

PSEUPRR’s allegations, and Appellant responded that “[t]here was no penetration; 

I didn’t get in her pants.”

II. Standard of Review

We review claims of jury charge error under the two-pronged test set out in 

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). If a jury charge is 

erroneous, then a reviewing court must evaluate the harm caused by the error. Ngo v. 

State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If the defendant raised a timely 

objection to the erroneous charge, then only “some harm” is required for reversal;

however, if a timely objection is not raised, then the record must show “egregious 

harm.” Almanza, 686 S.W.2d at 171; see Neal v. State, 256 S.W.3d 264, 278 (Tex. 

Crim. App. 2008). To determine if the jury charge egregiously harmed the 

defendant, we examine the record as a whole, including the entire jury charge, the

evidence, the contested issues, and the arguments of counsel. Almanza, 686 S.W.2d 

at 171; Martin v. State, 335 S.W.3d 867, 874 (Tex. App.—Austin 2011, pet. ref’d). 

Neither party has burden to show harm from jury charge error. See Elizondo v. State, 

487 S.W.3d 185, 205 (Tex. Crim. App. 2016). The record must show that Appellant
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suffered actual harm, not theoretical harm. Ngo, 175 S.W.3d at 750. Egregious 

harm exists if the error affects the very basis of the defendant’s case, deprives him 

of a valuable right, or vitally affects a defensive theory. Id.

III. Analysis

On appeal, Appellant asserts that the trial court gave an erroneous jury charge

that allowed the jury to consider acts allegedly committed before they were illegal. 

A person commits the offense of continuous sexual abuse of a young child if, during 

a period of thirty or more days, the person commits two or more acts of sexual abuse.

See PENAL § 21.02. Section 21.02 became effective on September 1, 2007, and acts 

of sexual abuse committed before that date cannot be used to support a conviction 

under Section 21.02. Gomez v. State, 459 S.W.3d 651, 660 (Tex. App.—Tyler 2015, 

pet. ref’d). A person cannot “be punished as a criminal for conduct that was innocent 

when done.” Martin, 335 S.W.3d at 876. In addition, Texas law also provides that 

a trial court shall “deliver to the jury . . . a written charge distinctly setting forth the 

law applicable to the case [and] not expressing any opinion as to the weight of the 

evidence.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). “[T]he judge’s 

duty to instruct the jury on the law applicable to the case exists even when defense 

counsel fails to object to inclusions or exclusions in the charge . . . .” Taylor v. State, 

332 S.W.3d 483, 486 (Tex. Crim. App. 2011). Thus, the judge may have to “sua 

sponte provide the jury with the law applicable to the case, under Article 36.14.” Id.

A. The trial court’s jury charge contained an erroneous instruction. 

Appellant alleges that the jury charge erroneously allowed jurors to convict 

him based on acts he allegedly committed prior to September 1, 2007. Specifically, 

the jury received the following instruction in the charge:

You are furthered charged as the law in this case that the state is 

not required to prove the exact date alleged in the indictment but may 
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prove the offense, if any, to have been committed at any time prior to 

the presentment of the indictment. 

The charge in this case uses language that has been held to be erroneous because it

presented the jury with a “broader chronological perimeter” than the statute permits.

Martin, 335 S.W.3d at 875–76 (quoting Taylor, 332 S.W.3d at 488). In Gomez, 

Kuhn, and Martin, our sister courts held that an instruction similar to the one given 

in the present case was erroneous. Gomez, 459 S.W.3d at 660; Kuhn v. State, 393 

S.W.3d 519, 524 (Tex. App.—Austin 2013, pet. ref’d); Martin, 335 S.W3d at 874–

75. Likewise, in this case, we hold that the instruction quoted above was erroneous.

B. The trial court’s error in the jury charge did not cause Appellant 

egregious harm. 

Because Appellant did not object to the trial court’s error in the jury charge, 

we apply the “egregious” harm standard, and will reverse only if the error 

functionally deprived him of a fair and impartial trial. Kuhn, 393 S.W.3d at 525. As 

we explain below, Appellant has not suffered egregious harm for three reasons. 

First, the trial court provided language that instructed the jury on the appropriate date 

range both before and after the erroneous portion of the charge. Second, during 

closing arguments, the State reminded the jury of the correct date range. And finally,

on the contested issue of guilt, the State adduced overwhelming evidence that 

Appellant committed two acts of sexual assault on PSEUPRR and C.R. each, during

a period of more than thirty days, after September 1, 2007.

1. The trial court’s appropriate instructions in other portions of 

the jury charge mitigated the harm caused by the erroneous 

instruction.

When we review the trial court’s jury charge error, we note that although a 

portion of the charge may erroneously instruct a jury, language preceding or 

following it that instructs the jury of the correct date range can mitigate that harm.
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See Gomez, 459 S.W.3d at 661; Kuhn, 393 S.W.3d at 529–30. In the present case, 

appropriate instructions preceded and followed the erroneous jury charge 

instruction, as follows:

The state accuses the defendant of having committed the offense 

of continuous sexual abuse of a young child or young children. 

Specifically, the accusation is that the defendant did then and there, 

during a period that was thirty or more days in duration, to-wit: from 

on or about September 1, 2007 through August 26, 2015, when

defendant, Earnie Lee Randell, was seventeen (17) years of age or 

older, committed two or more acts of sexual abuse . . . .

This instruction properly presented the correct date range because it did not attempt 

to charge Appellant with an act prior to the enabling date of Section 21.02 and thus 

mitigated the erroneous abstract portion of the jury charge. Likewise, in the 

application section of the charge, which closely followed the erroneous portion, the 

jurors were again instructed to consider the September 1, 2007 through August 26, 

2015 time frame in making their determination. Specifically, the trial court 

instructed the jury that it must determine whether the State proved beyond a 

reasonable doubt that “the defendant, in Taylor County, Texas, during a period from 

on our about the 1st day of September, 2007 through the 26th day of August, 2015, 

committed two or more of the following alleged acts of sexual abuse.”

Taken together, these two proper date instructions mitigate the harm caused 

by the erroneous portion and make it less likely that the jury improperly considered 

events prior to September 1, 2007, and, as a result, less likely that the jury charge 

egregiously harmed Appellant. See Gomez, 459 S.W.3d at 661 (holding that 

applicable language preceding erroneous portion of jury charge made egregious 

harm less likely); Kuhn, 393 S.W.3d at 529–30 (holding that the opening paragraph 

of the charge and the application paragraph immediately following the erroneous 

portion properly instructed the jury as to the relevant time frame and, thus, mitigated 

against a finding of egregious harm). 
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2. The State reminded the jury of the applicable date range 

during closing argument.

In its closing argument, the State emphasized the correct date range and did 

not encourage the jury to consider acts of sexual abuse that occurred prior to 

September 1, 2007. If the State reminds jurors of the correct date range during its 

closing argument, then that argument does not weigh in favor of a finding of 

egregious harm caused by the erroneous instruction. See Gomez, 459 S.W.3d at 

662–63. In this case, the State repeatedly emphasized in closing arguments the 

effective date of the statute and told the jurors to find Appellant guilty for actions 

committed during that time frame. Specifically, the State said in closing: 

So between September 1 of 2007 through 2008, 2009, 2010, 

2011, 2012, 2013, all of the evidence between [PSEUPRR] and [C.R.], 

you have to believe two. You have to find two. And were there more 

than two? There was a lot more than two. I mean, there was -- there 

was 25 a year, plus a few in 2010, plus more than one but less than ten 

during those years. Way more than two. But you have to find two. 

The State did not in any way suggest that the jury should consider abuse that 

occurred before September 1, 2007. See PENAL § 21.02. This, coupled with the 

State’s strong emphasis on the correct date range, makes it less likely that the jury 

charge egregiously harmed Appellant. See Kuhn, 393 S.W.3d at 531 (holding no 

egregious harm where State provided correct date range even though it emphasized 

long-term abuse and failed to distinguish evidence from outside the appropriate date 

range).

3. On the contested issue of Appellant’s guilt, the State adduced 

overwhelming evidence of Appellant’s continuous sexual 

abuse of PSEUPRR and C.R.

One factor that we review when we analyze whether Appellant has suffered 

egregious harm is the state of the evidence on the contested issue of guilt. Almanza, 

686 S.W.2d at 171; Martin, 335 S.W. at 874. In cases similar to the present case, 

some of our sister courts have determined that overwhelming evidence of guilt 
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makes a finding of egregious harm less likely because it bolsters the jury’s 

determination. See Gomez, 459 S.W.3d at 663; Flores v. State, No. 13-12-00606-

CR, 2014 WL 1514129, at *6 (Tex. App.—Corpus Christi Apr. 17, 2014, pet. ref’d) 

(mem. op., not designated for publication); Kuhn, 393 S.W.3d at 529; Martin, 335 

S.W.3d at 876. Both PSEUPRR and C.R. testified to numerous instances of abuse, 

over 100 instances for PSEUPRR over a period of approximately six years.

Specifically, PSEUPRR recalled that the sexual abuse began after a move in 2006

and occurred three times a week. In 2008, Appellant sexually assaulted PSEUPRR

while her parents were away on a vacation to Florida. In 2009, her family moved 

again, and the abuse occurred a few times thereafter.

Appellant’s brief even acknowledges the “substantial evidence of guilt.” For 

instance, Appellant’s wife described how Appellant would wipe himself with a 

washcloth prior to sexual activity, and PSEUPRR described how Appellant would 

use a washcloth to touch and sexually assault her. And C.R.’s description of 

Appellant’s sexual abuse largely matched PSEUPRR’s description of sexual abuse. 

Finally, Appellant’s wife also described an incident where she walked into the 

garage and startled Appellant and PSEUPRR, who was lying on her back on the 

freezer; PSEUPRR had testified about sexual abuse that occurred in the garage while 

she was lying on the freezer. Appellant claimed at the time that he was “blowing on 

her belly,” but according to Appellant’s wife, he “was just as nervous as he could 

be.” 

Although PSEUPRR recalled abuse that occurred prior to September 1, 2007, 

the vast majority of Appellant’s sexual abuse of her happened after the enabling date

of September 1, 2007, for Section 21.02. The sheer number of incidents described 

by PSEUPRR and C.R., who was born after September 1, 2007, significantly lessens 

the likelihood that the jury convicted Appellant of continuous sexual abuse because 

of acts that occurred prior to the effective date of Section 21.02. See Gomez, 459 
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S.W.3d at 663; Flores, 2014 WL 1514129, at *6; Kuhn, 393 S.W.3d at 528; Martin, 

335 S.W.3d at 876.

IV. Conclusion

We have carefully reviewed the whole record, including the entire jury charge, 

the closing arguments, the contested issues, and the state of the evidence, including 

the overwhelming probative evidence against Appellant. We hold that the trial 

court’s charge error did not cause Appellant egregious harm because the error did 

not affect the very basis of the case, deprive him of a valuable legal right, or vitally 

affect a defensive theory so as to deny him a fair and impartial trial. We overrule 

Appellant’s sole issue on appeal. 

V. This Court’s Ruling

We affirm the judgment of the trial court.

 MIKE WILLSON

 JUSTICE 

July 27, 2017 

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J., 

Willson, J., and Bailey, J.