IN THE

TENTH COURT OF APPEALS

No. 10-19-00076-CR

PAUL DARVIN MCDANIEL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 66th District Court

Hill County, Texas

Trial Court No. F072-18

MEMORANDUM OPINION

In two issues, appellant, Paul Darvin McDaniel, challenges his conviction for 

continuous sexual abuse of a young child. See TEX. PENAL CODE ANN. § 21.02 (West 2019). 

We affirm.1

 

1 As this is a memorandum opinion and the parties are familiar with the facts, we only recite those 

facts necessary to the disposition of the case. See TEX. R. APP. P. 47.1, 47.4.
McDaniel v. State Page 2

I. FACTUAL SUFFICIENCY OF THE EVIDENCE

In his first issue, McDaniel asserts that the evidence is factually insufficient to 

prove that the last incident of sexual abuse transpired the way that the child victim, L.J., 

described. McDaniel contends that this rendered the entirety of L.J.’s testimony 

unreliable and weak as to undermine confidence in the jury’s verdict.

The Court of Criminal Appeals has determined that factual sufficiency no longer 

applies in criminal cases. See Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App. 

2010) (concluding that there is “no meaningful distinction between the Jackson v. Virginia

legal sufficiency standard and the . . . factual-sufficiency standard, and these two 

standards have become indistinguishable” and holding the following: “As the Court 

with final appellate jurisdiction in this State, we decide that the Jackson v. Virginia

standard is the only standard that a reviewing court should apply in determining 

whether the evidence is sufficient to support each element of a criminal offense that the 

State is required to prove beyond a reasonable doubt. All other cases to the contrary, 

including Clewis, are overruled.”); Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 

2010) (adopting the Brooks plurality as a unanimous majority view); see also Garcia v. State, 

No. 10-16-00045-CR, 2017 Tex. App. LEXIS 195, at **5-6 (Tex. App.—Waco Jan. 11, 2017, 

pet. ref’d) (mem. op., not designated for publication). As an intermediate appellate court, 

we are required to follow binding precedent in cases decided by the Court of Criminal 

Appeals. See State v. DeLay, 208 S.W.3d 603, 607 (Tex. App.—Austin 2006) (“As an 
McDaniel v. State Page 3

intermediate appellate court, we lack the authority to overrule an opinion of the court of 

criminal appeals”), aff’d sub nom., State v. Colyandro, 233 S.W.3d 870 (Tex. Crim. App. 

2007).

McDaniel does not argue that the evidence regarding the last incident of sexual 

abuse was legally insufficient, thus conceding that the evidence is sufficient under the 

Jackson v. Virginia standard of review. See Garcia, 2017 Tex. App. LEXIS 195, at *6 (citing 

Sanders v. State, No. 10-14-00211-CR, 2015 Tex. App. LEXIS 4704, at *2 (Tex. App.—Waco 

May 7, 2015, pet. ref’d) (“By asking this Court to only review the factual sufficiency of the 

evidence, Sanders concedes the evidence is sufficient under the Jackson standard of 

review.”)). Accordingly, we overrule McDaniel’s first issue.

II. THE JURY CHARGE

In his second issue, McDaniel argues that the trial court failed to limit or tailor the 

definitions of the culpable mental states to the applicable elements of the offense of 

continuous sexual abuse of a child. As a result of these errors, McDaniel contends that 

he suffered egregious harm.

A. Standard of Review

In reviewing a jury-charge issue, an appellate court’s first duty is to determine 

whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. 

App. 1996). If error is found, the appellate court must analyze that error for harm. 

Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was properly 
McDaniel v. State Page 4

preserved by objection, reversal will be necessary if the error is not harmless. Almanza v. 

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was not preserved 

at trial by a proper objection, a reversal will be granted only if the error presents egregious 

harm, meaning McDaniel did not receive a fair and impartial trial. Id. To obtain a reversal 

for jury-charge error, McDaniel must have suffered actual harm and not just merely 

theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012); Arline v. 

State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).

McDaniel admits that he did not object to the jury charge; thus, he must show 

egregious harm. See Almanza, 686 S.W.2d at 171. In examining the record for egregious 

harm, we consider the jury charge, the state of the evidence, the final arguments of the 

parties, and any other relevant information revealed by the record of the trial as a whole. 

Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). 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. Stuhler v. State, 218 S.W.3d 706, 719 

(Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006).

B. Discussion

The culpable mental states in the penal code encompass three possible conduct 

elements that may be involved in an offense: (1) nature of the conduct; (2) result of the 

conduct; and (3) circumstances surrounding the conduct. TEX. PENAL CODE ANN. § 6.03 

(West 2011); see McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). When an 
McDaniel v. State Page 5

offense is specifically delineated as to the type of conduct, the trial court should limit the 

statutory definitions in the jury charge to the culpable mental state required. See Price v. 

State, 457 S.W.3d 437, 441 (Tex. Crim. App. 2015); Cook v. State, 884 S.W.2d 485, 491 (Tex. 

Crim. App. 1994).

In the instant case, McDaniel was charged by indictment with continuous sexual 

abuse of a child. See TEX. PENAL CODE ANN. § 21.02. As alleged in the indictment, the 

underlying offenses for continuous sexual abuse of a young child were aggravated sexual 

assault of a child and indecency with a child by contact. See id. §§ 21.11(a)(1), 22.021 (West 

2019). McDaniel argues that the culpable mental states for both of the underlying offenses 

apply to the nature of the actor’s conduct, yet the charge improperly “defined intent and 

knowledge with respect to the result of conduct and circumstances surrounding conduct 

in addition to nature of conduct.”

Both of the underlying offenses are nature-of-the-conduct offenses. See Reed v. 

State, 421 S.W.3d 24, 28-29 (Tex. App.—Waco 2013, pet. ref’d) (noting that “aggravated 

sexual assault is a conduct-oriented offense in which the focus of the offense is on whether 

the defendant acted intentionally or knowingly with respect to the nature of his conduct 

rather than the result of his conduct” (citing Gonzales v. State, 304 S.W.3d 838, 848 (Tex. 

Crim. App. 2010); Vick v. State, 991 S.W.2d 830, 832 (Tex. Crim. App. 1999); Garcia v. State, 

No. 10-09-00162-CR, 2010 Tex. App. LEXIS 2429, at **5-6 (Tex. App.—Waco Mar. 31, 2010, 

no pet.) (mem. op., not designated for publication))); see also Pizzo v. State, 235 S.W.3d 711, 
McDaniel v. State Page 6

717 (Tex. Crim. App. 2007); Underwood v. State, 176 S.W.3d 635, 642 (Tex. App.—El Paso 

2005, pet. ref’d) (“However, this Court has determined that indecency with a child is a 

‘nature of the conduct’ offense.” (citing Washington v. State, 930 S.W.2d 695, 699 (Tex. 

App.—El Paso 1996, no pet.); Caballero v. State, 927 S.W.2d 128, 131 (Tex. App.—El Paso 

1996, pet. ref’d))).

With respect to the culpable mental states, the abstract portion of the charge 

provided the following, in pertinent part:

A person acts intentionally, or with intent, with respect to the nature of his 

conduct or to a result of his conduct when it is his conscious objective or 

desire to engage in the conduct or to cause the result.

A person acts knowingly, or with knowledge, with respect to the nature of 

his conduct or to circumstances surrounding his conduct when he is aware 

of the nature of his conduct or that the circumstances exist.

The abstract definition for “intentionally” tracks the entirety of the language in section 

6.03(a) of the Texas Penal Code, whereas the definition for “knowingly” is limited to 

nature-of-conduct and circumstances-surrounding-the-conduct elements. See TEX.PENAL 

CODE ANN. § 6.03(a)-(b).

Nevertheless, the application portion of the jury charge stated:

Now if you find from the evidence beyond a reasonable doubt that on or 

about May 27, 2017, through August 19, 2017, when the defendant was 17 

years of age or older, commit two or more acts of sexual abuse against a 

child younger than 14 years of age, namely, [L.J.], did then and there by 

intentionally or knowingly causing the sexual organ of [L.J.], a child who 

was then and there younger than 14 years of age, to contact the sexual organ 

of the defendant, and/or by causing the anus of [L.J.] a child who was then 

and there younger than 14 years of age, to contact the sexual organ of the 
McDaniel v. State Page 7

defendant, and/or by causing the penetration of the sexual organ of [L.J.], a 

child who was then and there younger than 14 years of age, by a finger of 

the defendant, and/or did then and there with the intent to arouse or gratify 

the sexual desire of said defendant by touching the genitals of [L.J.], a child 

who was then and there younger than 14 years of age, and/or did then and 

there with intent to arouse or gratify the sexual desire of said defendant by 

causing [L.J.] to touch the genitals of the defendant, then you will find the 

defendant “Guilty” of continuous sexual abuse of a young child as charged 

in the indictment.

As shown above, “intentionally or knowingly” in the application portion of the jury 

charge was properly tailored to the nature of McDaniel’s conduct. Furthermore, the 

language tracked the allegations made in the indictment.

The Court of Criminal Appeals has held that “[w]here the application paragraph 

correctly instructs the jury, an error in the abstract instruction is not egregious.” Medina 

v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); see Plata v. State, 926 S.W.2d 300, 302-03 

(Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. 

Crim. App. 1997) (holding that the inclusion of a merely superfluous abstraction never 

produces reversible error in the court’s charge because it has no effect on the jury’s ability 

to implement fairly and accurately the commands of the application paragraph or 

paragraphs). Abstract statements of law that go beyond the allegations in the indictment 

will not present reversible error when the trial court’s application of the law to the facts 

effectively restricts the jury’s deliberation to the allegations in the indictment. Grady v. 

State, 614 S.W.2d 830, 831 (Tex. Crim. App. 1981).
McDaniel v. State Page 8

Therefore, assuming that the abstract portion of the charge contained error, we 

cannot conclude that the purported error was egregious because the application 

paragraph correctly limited the culpable mental states as charged in the indictment. See 

Medina, 7 S.W.3d at 640; Plata, 926 S.W.2d at 302-03; Grady, 614 S.W.2d at 831; see also Pizzo, 

235 S.W.3d at 717; Reed, 421 S.W.3d at 28-29; Underwood, 176 S.W.3d at 642. As such, any 

error in the abstract portion of the charge was not calculated to injure McDaniel’s rights 

or deprive him of a fair and impartial trial. See Almanza, 686 S.W.2d at 171; see also Stuhler, 

218 S.W.3d at 719; Sanchez, 209 S.W.3d at 121. We overrule McDaniel’s second issue.

III. CONCLUSION

Having overruled both of McDaniel’s issues on appeal, we affirm the judgment of 

the trial court.

JOHN E. NEILL

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Neill

Affirmed

Opinion delivered and filed November 13, 2019

Do not publish

[CR25]