IN THE

TENTH COURT OF APPEALS

No. 10-13-00386-CR

TEDDY LEE CALDWELL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2012-297-C2

MEMORANDUM OPINION

In two issues, appellant, Teddy Lee Caldwell, challenges his convictions for two 

counts of sexual assault of a child and one count of indecency with a child by contact. 

See TEX. PENAL CODE ANN. §§ 21.11, 22.011 (West 2011). We affirm.

I. BACKGROUND

Appellant was charged by indictment with three counts of sexual assault of a 

child, a first-degree felony, and one count of indecency with a child by contact, a 

second-degree felony. See id. §§ 21.11(d), 22.011(f). The State alleged that appellant 
Caldwell v. State Page 2

perpetrated the charged offenses against his step-daughter, I.H., on or about May 1, 

2010 and February 11, 2011. 

The State proceeded to trial on two of the three counts of sexual assault of a child 

and the one count of indecency with a child by contact. At the conclusion of the 

evidence, the jury found appellant guilty of the three charged offenses and assessed 

punishment as follows: (1) ninety-nine years’ confinement in the Institutional Division 

of the Texas Department of Criminal Justice with a $10,000 fine for the first count of 

sexual assault of a child; (2) forty years’ confinement with a $10,000 fine for the second 

count of sexual assault of a child; and (3) fifteen years’ confinement with a $10,000 fine 

for the one count of indecency with a child by contact. The trial court ordered the 

imposed sentences to run consecutively and certified appellant’s right of appeal. This 

appeal followed. 

II. SUFFICIENCY OF THE EVIDENCE

In his first issue, appellant contends that the evidence adduced at trial is 

insufficient to establish that the victim was younger than seventeen years old when the 

two counts of sexual assault of a child were allegedly committed.

A. Applicable Law

In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of 

Criminal Appeals expressed our standard of review of a sufficiency issue as follows:

In determining whether the evidence is legally sufficient to support a 

conviction, a reviewing court must consider all of the evidence in the light 

most favorable to the verdict and determine whether, based on that 

evidence and reasonable inferences therefrom, a rational fact finder could 

have found the essential elements of the crime beyond a reasonable doubt. 
Caldwell v. State Page 3

Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 

(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This 

“familiar standard gives full play to the responsibility of the trier of fact 

fairly to resolve conflicts in the testimony, to weigh the evidence, and to 

draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 

U.S. at 319. “Each fact need not point directly and independently to the 

guilt of the appellant, as long as the cumulative force of all the 

incriminating circumstances is sufficient to support the conviction.” 

Hooper, 214 S.W.3d at 13.

Id.

Our review of "all of the evidence" includes evidence that was properly and 

improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if 

the record supports conflicting inferences, we must presume that the factfinder resolved 

the conflicts in favor of the prosecution and therefore defer to that determination. 

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial 

evidence are treated equally: “Circumstantial evidence is as probative as direct 

evidence in establishing the guilt of an actor, and circumstantial evidence alone can be 

sufficient to establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that 

the factfinder is entitled to judge the credibility of the witnesses and can choose to 

believe all, some, or none of the testimony presented by the parties. Chambers v. State, 

805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

The sufficiency of the evidence is measured by reference to the elements of the 

offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 

S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four 

things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not 

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s 
Caldwell v. State Page 4

theories of liability; and (4) adequately describes the particular offense for which the 

defendant was tried. Id. 

To satisfy the elements of sexual assault of a child in this case, the State was 

required to prove that appellant intentionally or knowingly penetrated the sexual organ 

of I.H., a child under seventeen years of age at the time of the incidents, by any means. 

See TEX. PENAL CODE ANN. § 22.011(a)(2)(A).

B. Facts

Marc Gosselin, formerly an officer with the Waco Police Department, testified 

that he was involved with the initial report regarding the purported sexual abuse 

perpetrated by appellant against I.H. Gosselin noted that I.H. was seventeen years old 

at the time of the report and that her birthday is May 8, 1993. At trial, I.H. testified that 

appellant first sexually assaulted her when she was sleeping in the same bed as her 

sister, P.H. In this instance, I.H. stated that appellant “pulled [her] clothes, or whatever, 

down and put his fingers inside of [her].” Later, I.H. noted that appellant repeatedly 

sexually assaulted her when she was a sixteen-year-old sophomore in high school and 

that the assaults continued until she was almost eighteen years old. The victim 

recounted that appellant penetrated her vagina with his fingers two or three times 

while she was sharing a room with P.H. and that appellant also penetrated her vagina 

with his penis while her sister slept in the same bed. Additionally, I.H. testified that she 

told CPS in February or March of 2011, when she was seventeen years old, that 

appellant had been sexually assaulting her for “a year, almost over a year and a half.”
Caldwell v. State Page 5

P.H. later stated that she saw appellant on top of I.H. having “[u]nwanted 

intercourse” and that I.H. would cry softly while it transpired. P.H. testified that I.H. 

was fifteen or sixteen years old when the sexual assaults first began and that the sexual 

abuse occurred “for a long time.” Thereafter, P.H. noted that I.H. first started telling 

her about the sexual assaults perpetrated by appellant in the spring or summer of 2009, 

which would have been when I.H. was approximately sixteen years old. Furthermore, 

P.H. recounted that I.H. told her that the sexual assaults occurred long before P.H. saw 

it herself. 

Later at trial, the State introduced the examining report of Ann Sims, M.D., 

wherein Dr. Sims mentioned the following about I.H.:

[I.H.] told me that [appellant] started doing things to her when she 

was 16 and it continued for 2 years, including during the time she was 

having sex with her friend.[1] She said[,] at first[, appellant] did things to 

her at night in the room she shared with her sister. She said he would 

come in while everyone else was sleeping and pull the covers off (she 

would pull them back on and he would pull them off), pull down her 

pants and underwear, lie down on top of her and “stick his thing into 

me.” She said that it hurt but didn’t make her bleed. She said when he 

finished[,] he would tell her to pull her pants up and he would leave. She 

said he would also stick his fingers into her vagina and it would hurt a 

little. She said she would be wet after he finished, and she would get up 

early while everyone else was still sleeping and go take a shower. She 

said when he would come into the room[,] he would stand there and 

“look at me.” She said she was scared to tell anyone, that “I knew what 

I’d go through, go through the system, and be taken away from my 

momma.” [I.H.] said that her sister would hear her crying and knew what 

was going on, but she told her sister, “Don’t say anything,” so her 

momma wouldn’t know. She said [appellant] would take the kids to the 

store to get them something, and she didn’t want to go, but she didn’t 

 

1 I.H. testified that a boy named “Lil Ron” impregnated her, but that she miscarried in the fall of 

2009. I.H. also stated that she stopped having sex with “Lil Ron” after she became pregnant in 2009 and 

that appellant was having sex with her before she started having sex with “Lil Ron.”
Caldwell v. State Page 6

want her mom to find out what was going on so she went. She said 

[appellant] would buy them things, but he always “gave me more.”

[I.H.] said that last year [2010] she started sleeping alone on the 

couch bed in the dining room, and that [appellant] would come in there 

and do the same things to her. She said her momma would be in her 

room asleep. She said [appellant] would “stand there and look at me, 

wake me up[,] and turn me over and pull my pants down.” (She said she 

slept on her side). She said he would make moaning sounds while he was 

doing it to her. She said it always happened at night while everyone was 

asleep, and she would “lay there and cry.” [I.H.] said that the last time 

[appellant] did anything to her was in February, just after Valentine’s Day, 

and after her February period. She said she had been sleeping a lot and 

eating a lot and gaining weight since then, and she was worried that she 

might be pregnant, but then she had a period in March. [I.H.] denied that 

[appellant] had ever kissed her, touched her breasts, put his penis in her 

mouth or anus, or made her touch his penis.

 

And finally, the evidence established that I.H., her mother, and appellant all 

tested positive for the same sexually-transmitted disease—trichomonas vaginalis. I.H 

was diagnosed with trichomonas vaginalis in January 2010, and the record reveals that 

appellant tested positive for the same sexually-transmitted disease on November 20, 

2006.

C. Discussion

Ordinarily, the testimony of a child victim is sufficient to support a conviction for 

sexual assault. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2013); Perez v. 

State, 113 S.W.3d 819, 838 (Tex. App.—Austin 2003, pet. ref’d), overruled in part on other 

grounds by Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008); Karnes v. State, 873 

S.W.2d 92, 96 (Tex. App.—Dallas 1994, no pet.); see also Dale v. State, Nos. 10-11-00380-

CR, 10-11-00381-CR, 2012 Tex. App. LEXIS 3127, at **24-25 (Tex. App.—Waco Apr. 18, 

2012, pet. ref’d) (mem. op., not designated for publication). Further, courts give wide 
Caldwell v. State Page 7

latitude to the testimony given by child victims of sexual abuse. See Villalon v. State, 791 

S.W.2d 130, 134 (Tex. Crim. App. 1990) (en banc).

Here, I.H. testified that appellant had sex with her and digitally penetrated her 

many times when she was sixteen years old.2 Moreover, I.H.’s sister, P.H., also testified 

that appellant perpetrated the sexual assaults against I.H. when I.H. was fifteen or 

sixteen years old. Furthermore, the examining report of Dr. Sims and the fact that, by 

January 2010, appellant, I.H.’s mother, and I.H. all have the same sexually-transmitted 

disease—trichomonas vaginalis—supports the jury’s conclusion that appellant had sex 

with I.H. when she was sixteen years old. 

Therefore, viewing the evidence in the light most favorable to the jury’s verdict, 

we conclude that a rational juror could have concluded that appellant intentionally or 

knowingly caused the penetration of I.H.’s vagina with his penis and his fingers on 

several occasions and that at least two of the incidents transpired prior to I.H.’s 

seventeenth birthday. See TEX. PENAL CODE ANN. § 22.011(a)(2)(A); see also Jackson, 443 

U.S. at 318-19, 99 S. Ct. at 2788-89; Hooper, 214 S.W.3d at 13. Accordingly, we hold that 

 

2 Later in her testimony, I.H. could not recall whether appellant sexually assaulted her before her

seventeenth birthday; however, we note that it is within the province of the factfinder to judge the 

credibility of the witnesses. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). This means 

that the jury was entitled to believe all, some, or none of the testimony presented by the parties. See id. 

And because it is within the province of the jury, we are to defer to the jury’s resolution of conflicts in the 

evidence. See Jackson v. Virginia, 443 U.S. 307, 329, 99 S. Ct. 2781, 2792-93, 61 L. Ed. 2d 560 (1979); see also 

Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008); Render v. State, 316 S.W.3d 846, 859 (Tex. 

App.—Dallas 2010, pet. ref’d) (“An appellate court must give deference to a jury’s decision regarding 

what weight to give contradictory testimonial evidence because the decision is most likely based on an 

evaluation of credibility and demeanor, which the jury is in a better position to judge.”). With its guilty 

verdict, the jury resolved any conflicts in I.H.’s testimony in favor of the prosecution. Therefore, based on 

the foregoing case law, and given the wide latitude given to the testimony of child victims of sexual 

abuse, we defer to the jury’s resolution of the facts. See Jackson, 443 U.S. at 329, 99 S. Ct. at 2792-93; 

Lancon, 253 S.W.3d at 706; Chambers, 805 S.W.2d at 461; see also Render, 316 S.W.3d at 859. 
Caldwell v. State Page 8

the evidence is sufficient to support appellant’s convictions for sexual assault of a child. 

See TEX. PENAL CODE ANN. § 22.011(a)(2)(A); see also Jackson, 443 U.S. at 318-19, 99 S. Ct. 

at 2788-89; Lucio, 351 S.W.3d at 894; Hooper, 214 S.W.3d at 13. We overrule appellant’s 

first issue.

III. THE PUNISHMENT CHARGE

In his second issue, appellant complains that the trial court erred by not 

including “the mandatory condition of community supervision that the Court create a 

child safety zone as a condition of community supervision” in the punishment charge. 

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 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 appellant did not receive a fair and impartial trial. 

Id. To obtain a reversal for jury-charge error, appellant 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).
Caldwell v. State Page 9

B. Applicable Law

Under Texas law, the trial court must provide the jury with “a written charge 

setting forth the law applicable to the case; not expressing any opinion as to the weight 

of the evidence, not summing up the testimony, discussing the facts or using any 

argument in [its] charge calculated to arouse the sympathy or excite the passions of the 

jury.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007); see Walters v. State, 247 S.W.3d 

204, 208 (Tex. Crim. App. 2008). However, Texas courts have stated that a trial court is 

not required to submit the statutory terms of community supervision in the jury charge 

on punishment. Sanchez v. State, 243 S.W.3d 57, 69 (Tex. App.—Houston [1st Dist.] 

2007) (citing Croft v. State, 148 S.W.3d 533, 539 (Tex. App.—Houston [14th Dist. 2004, no 

pet.)). In addition, this Court has noted that the failure to enumerate all of the terms of 

conditions of community supervision is not considered harmful to the accused or 

restrictive of the court’s authority. Wade v. State, 951 S.W.2d 886, 893 (Tex. App.—Waco 

1997, pet. ref’d); see Sanchez, 243 S.W.3d at 69-70. 

C. Discussion

At trial, appellant did not object to the punishment charge, nor did he request 

that the trial court include the complained-of community-supervision provisions in the 

punishment charge.3 Furthermore, the jury did not recommend community 

 

3 Nevertheless, the punishment charge included the following instruction:

In this case, the Defendant has filed an application for probation, stating that he has 

never before been convicted of a felony offense in this State nor any other State. Our 

laws provide that if a person is charged with the offenses of Sexual Assault of a Child 

and Indecency with a Child by Contact, and if a jury finds him guilty, and if the 

punishment assessed therefor by said jury does not exceed ten years imprisonment, and 
Caldwell v. State Page 10

supervision for appellant and, instead, imposed sentences of ninety-nine years, forty 

years, and fifteen years—none of which made appellant eligible for community 

supervision. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 4(d)(1) (West Supp. 2013). 

And finally, appellant does not cite any relevant authority that required the trial court 

to include the community-supervision instruction referenced on appeal. See Cortez v. 

State, 955 S.W.2d 382, 384 (Tex. App.—San Antonio 1997, no pet.) (“[N]o statute or 

decision requires the trial court to include the conditions of probation in the jury 

charge.”); McNamara v. State, 900 S.W.2d 466, 468 (Tex. App.—Fort Worth 1995, no pet.); 

Yarbrough v. State, 742 S.W.2d 62, 64 (Tex. App.—Dallas 1987), pet. dism’d, 779 S.W.2d 

844 (Tex. Crim. App. 1989); see also Flores v. State, 513 S.W.2d 66, 69 (Tex. Crim. App. 

1974) (“While it is considered good practice to enumerate in the court’s charge the 

probationary conditions which the court may impose if probation is recommended by 

the jury, the failure to so enumerate the said conditions is not harmful to the accused or 

 

if the jury further finds that the Defendant has never before been convicted of a felony in 

this State nor any other State, then the jury may, in its discretion[,] cause the Defendant 

to be placed on probation during his good behavior.

The punishment charge then listed fourteen different conditions of community supervision. 

Furthermore, the punishment charge provided that:

Now, therefore, if the punishment assessed by you does not exceed ten years 

imprisonment, and if you further find that the Defendant has never been before 

convicted of a felony in this State nor any other State, then you may, in your discretion, 

cause the imposition of the sentence in this case to be suspended, and cause the 

Defendant herein to be placed on probation during his good behavior.

In the event you desire to suspend the imposition of the sentence of the 

Defendant and place him on probation, then let your verdict show that you find that the 

Defendant has never before been convicted of a felony in this State nor any other State, 

and further show that you recommend suspension of the imposition of the sentence, and 

that the Defendant be placed on probation. If you do not desire to suspend the 

imposition of the sentence and place the Defendant on probation, then you will say 

nothing in your verdict concerning the same.
Caldwell v. State Page 11

restrictive of the court’s authority under the statute.”). Therefore, based on the 

foregoing, we cannot say that the trial court erred by failing to include the complainedof instruction in the punishment charge. See Hutch, 922 S.W.2d at 170. As such, we 

overrule appellant’s second issue.

IV. CONCLUSION

Having overruled both of appellant’s issues, we affirm the judgments of the trial 

court.

AL SCOGGINS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed September 11, 2014

Do not publish

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