# /3i3-/Y ORIGINAL RECEIVED IN ThG-'.J'.iricrf Appeals Sixth District JAN 0 a 2015 NO.
ioxarkcna. Texas >, •' 

### De-oraAutrey, Clerk in the court of criminal appeals
AUSTIN , TEXAS

MATTHEW VANOVER
PETITIONER
VS.
STATE OF TEXAS
RESPONDENT 

# RECBVED IN COURTOrCMALAPPEALS \ JAN 23 2015 Abe!Acosta, Clerk 

# FILED IN 

# COURTOFCRIMINALAPPEALS •WJ 2 3 2,Jtj 

## AbelAcosta, Clerk
ON APPEAL FROM THE SIXTH COURT OF APPEALS NO. 06-13-00256-CR, AND THE 196th DISTRICT COURT OF HUNT COUNTY, TEXAS, TRIAL COURT NO. 28,845

PETITION FOR DISCRETIONARY REVIEW

MATTHEW RYAN JERRY VANOVER Pro-se, TDCJ-ID # 1904572:'. DOLPH BRISCOE UNIT 1459 W. Hwy. 85 DILLEY, TEXAS 78017

PETITIONER

### NO.

IN THE COURT OF CRIMINAL APPEALS AUSTIN , TEXAS

MATTHEW VANOVER PETITIONER
VS.
STATE OF TEXAS
RESPONDENT
ON APPEAL FROM THE SIXTH COURT OF APPEALS NO. 06-13-00256-CR, AND THE 196th DISTRICT COURT OF HUNT COUNTY, TEXAS, TRIAL COURT NO. 28,845

PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE COURT OF CRIMINAL APPEALS: NOW COMES, MATTHEW VANOVER, PETITIONER, and respectfully submits his Petition For Discretionary Review. This Appeal is taken from the Sixth Court Of Appeals in Texarkana and the 196th Judicial District Court of Hunt County, Texas.IDENTITIES OF ALL PARTIES

PETITIONER MATTHEW RYAN JERRY VANOVER TDCJ-ID UNIT JASON A. DUFF ATTORNEY AT LAW P.O.BOX 11 GREENVILLE, TEXAS 75403

STATE.

G.CALVIN GROGAN V. HUNT CO. COURTHOUSE P.O.BOX 441 GREENVILLE, TEXAS 75403
NOBLE D. WALKER JR. P.O.BOX 1097 GREENVILLE, TEXAS 75403 PETITIONER

COUNSEL ON APPEAL

ASSISTANT DISTRICT ATTORNEY ON APPEAL

DISTRICT ATTORNEYTABLE OF CONTENTS

IDENTITIES OF ALL PARTIES
TABLE OF CONTENTS
INDEX OF AUTHORITIES
STATEMENT REGARDING ORAL ARGUMENT
STATEMENT OF THE RECORD
STATEMENT OF PROCEDURAL HISTORY AND STATEMENT OF THE CASE
SUMMARY OF THE ARGUMENTS
POINT OF ERROR ONE THE COURT OF APPEALS ERRED IN HOLDING THE EVIDENCE WAS SUFFICIENT TO INTENT
POINT OF ERROR TWO DID THE COURT OF APPEALS ERR IN HOLDING THAT THE COURT'S CHARGE DID NOT RESULT IN EGREGIOUS HARM.

CONCLUSION
PRAYER
CERTIFICATE OF SERVICE
INMATES UNSWORN DECLARATION
APPENDIX "A" SIXTH COURT OF APPEALS MEMORANDUM OPINION

n. 1 ii iii iv iv 1,2 2,3,4 5,6,7

7,8,9

9.10 10 11 11INDEX OF AUTHORITIES

CASES

STATE ALAMANZA V. STATE, 686 S.W.2d 157,171 (Tex.Crim.App.1996) BAZANES V. STATE, 310 S.W.3d 32,40-41 (Tex.App.-Ft. Worth 2010) BROOKS V. STATE, 323 S.W.3d 893,912 (Tex.Crim.App.2010) ' CLEWIS V. STATE, 922 S.W.2d 126 (Tex.crim.App.1996)
SUPREME COURT PAGE(S)

7 7 7 6

BRONSTON V. UNITED STATES, 409 U.S.352,93 S.Ct.595,34 L.Ed.2d 568 6 GLASSER V. UNITED STATES, 315 U.S.60,80,62 S.Ct.457",469,86 L.Ed 860 6 IN RE WINSHIP, 397 U.S.358,90 S.Ct.1068,25 L.Ed.2d 368(1970) 5,7 JACKSON V. VIRGINIA, 443 U.S.307,319,99 S.Ct.2781,61 L.Ed.2d 560(1979) 5,7 TIBBS V. FLORIDA, 457 U.S.31,102 S.Ct.2211,72 L.Ed.2d 65.2(9182) 7
STATUTES

CONSTITUTIONAL AMENDMENT FOURTEEN
TEXAS CODE OF CRIMINAL PROCEDURE ART. 36.14 36.15 36.16 36.17 36.18 36.19 TEXAS PENAL CODES § 22.11 22.011

OTHER
MERCK MEDICAL MANUAL HOME EDITION

ill. 5',7

8 8 8 5,8,9 8,9

5,6STATEMENT REGARDING ORAL ARGUMENT
No oral argument is requested at this time,

STATEMENT OF THE RECORD The Record is not being used in this Petition because appellate counsel would not respond to Petitioners request for them. Only the Appeal Court's Memorandum Opinion is beinq used.

iv.TO THE HONORABLE COURT OF CRIMINAL APPEALS:
STATEMENT OF PROCEDURAL HISTORY
STATEMENT OF THE CASE 

### The State charged the defendant with two charges; 1) Aggrevated Sexual Assault and 2) Indecencv with a Child. Petitioner went to trial and plead not 

### quilty before a iury of his peers. The jury found petitioner not guilty of the sexual assault but yet convicted him of the indecencv count. He was then senetnced to seven (7) years in the Texas Department of Criminal Justice Institutional Division. Petitioner duly filed a timely Notice of Appeal to the Court and Counsel filed his Brief with the Sixth Court of Appeals in which handed down a answer on September 3rd, 2014. Petitioner filed a Motion for extention to file a PDR twice and hence this petition. 

### In December of 2008, twelve-year old Chloe.Cherry/]pseudonym)and her cousin, the petitioner whom was seventeen at the time were watching television at'the home of Cloe's mother, Rita.Chloe alleged that as they were watching television 

### Petitioner started rubbing her breast,thighs and buttcks after her moth&r had ( 

### gone to bed. She stated that this kept going on over her protest. At one point she alleged that she text her sister and told her that Vanover was hurting her 

### but yet when her sister called her mom, Rita went in to check on them and both, Chloe-ah Vanover stated nothing was wrong,. Nearly two years later Cbloe.^allegedly shows her mother text messages sent by petitioner in which read that he was 

### sorry for all that he had ever done to her. When asked what that meant Cllee . states that Vanover had molested her. 

### At rial they heard testimony that Vanover could not have sexually assaulted Chloe because he had a mediccil condition that would have hindered him from 

### fighting Chloe as she had stated she had done. It would be clear to this Court if it searches for the truth that the evidence does not meet with what was 

### discovered to convict the petitioner of indecency either. Chloe stated that she 

### had fought petitioner to keep him from subduing her in the bedroom but yet

1.by her own testimony she stated that petitioner was rubbing her in a sexual manner and touching her when she text her sister to state petitioner was hurting her. It took almost two years for her to state that she had been sexually molested by Vanover. Her testimony was not even kept in compliance with the outcry statement that states the first person over the age of seventeen that describes what happened, that would have been the .-jister since Chloe states she text her sister and told her first in 2008. Further since Chloe states that this sexual assault occured after the touching that night and at that time she had fought with petitioner to keep him from sexually assau.lting her and the jury after hearing testimony concerning the madical condition that the petitioner has that would have kept him from fighting with her the jury should have been able to disbelieve her on the indecency act too. The Court of Appeals was correct in the fact that the appellate counsel did not argue that the evidence was insufficient to have happened as Chloe states but it also shows that the State did not prove the "to arouse or qratify the sexual desire of any person" point of his arqument. the Court is wrong in concluding that the factual sufficiency qoes only to the Intent. It encompasses all evidence allowed at trial.

SUMMARY OF THE ARGUMENTS The Court of Appeals erred in holding that the evidence was sufficient to intent. The State could not have proved that petitioner's conduct,his remarks or the surrounding circumstances;- shows that he intended to arouse or gratify his sexual desire with what the alleged victim stated to her mother two years later by alledging her interpretation of a text messaqe to her motherv. The evidence of the text alludes to nothing more than some sort of appology for something which the Court would not know of. In determining the legal or factual sufficiency of the evidence to show an appellant's intent,and faced with a record that supports conflicting inferences everyone must presume that even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflict in favor of the prosecution . Here it is clear that the jury found the accuastions of sexual assualt to be false and instead of 

### aquittinq the defendant of indecency since it could not say for certain whetherthe act, of indecency by touchinq happened or not that they would convict the petitioner of the charge. The intent to arouse or sexually qratify oneself would believe to show that petitioner had a errection at the time of the rubbinq or touchinq. This is vital information in provinq that the defendant was tryinq to get off by touchinq or rubbing on Chloe. There is no testimony as to this being so. the State did not prove that the evidence was sufficient to show the sexual deviation. No one would state that had appellant been aroused that, he • would not have had a errection as a by product of the action. Chloe stated that after she went to her room petitioner followed and the sexual attack beqan. This would have shown that had he attacked her he could have sexually be qratified or aroused by just the action of her fiqhtinq him off. Still had petitioner followed her he would have had a errection and Chloe would have seen it and would have known that the defendant was aroused. No such testimony was shown at this trial to state this fact. This is the evidence that would ahve damned the petitioner. It would have shown sexual qratification and arousal. The Appeal court erred in findinq that the Court's Charqe did not result in eqreqious harm. Eqreqious harm is the type and level of harm that effects the very basis of a case, it deprives the defendant of a valuable riqht, or virtually affects a defensive theory. That is a riqht to a fair and impartial trial. Not havinq his transcripts or even the appellant's brief filed to the Court of Appeals by Counsel the defendant/Petitioner is qonna go out on a limb and say that his counsel should have argued or objected to the charqe once read to preserve it for appellate reasons. Because to have not done so would amount to ineffective assistance of counsel. It is in the very nature of a factual-sufficiency review that it authorizes an appellate court, albeit to a very limited deqree, to act in capacity of a so-called thirteenth juror. Petitioner is askinq this court to review this arqument in favor of nuetralitv which would permit this court to show no deference at all to the jury's credibility and weiqht determinations and to sit as the thirteenth juror without anv limitation and to declare that a conflict in the evidence justifies a new trial-or a reversal and and aquittal of the charqe. Here the Court's charge stated that Vanover enqaqed in sexual contact with the intent to sexually 

### gratify the desire and to arouse himself by intentionally and knowingly havinqsexual contact with Chloe. the charqe was an error, the Court's decision seems to be conflicted with that of other Courts of Appeals. The Petitioner has a Constitutional riqht under both the Federal and State under the Fourteenth Amendment to have a fair and impartial trial and jury. Allowinq the jury to consider another mens rea so as to confuse the jury about how to convict the defendant, the jury was allowed to consider that he intentionally and knowinqly toched Chloe and then was allowed further to find that he intended to arouse and sexually qratify himself. As seen in the other arqument, the jury disbelieved the actions in the sexual assault, so it finally settled on the lesser of two evils by settlinq on the lesser of the two charges. The State did not prove the defendant intentionally or knowingly touched Chloe because no evidence is present other than hearsay testimony from two years after the fact. The State surely did not prove every element of the arouse and sexually gratify portion of the charge. Petitioner states taht the jury charge was a violation of a federally protected right under state laws and federal under the Fourteenth amendment to a fair and impartial trial. If a jury has to consider the facts and is beinq presented with a incorrect jury charqe it is not a harmless error. The state with all of it's resources and knowledqe knew it was a invalid charge and yet it souqht to have every advantaqe it could with the jury to qet a conviction. On paqe four of the Appellate court's memorandum opinion it states that ,"here, there was no objection at trial to the jury charqe." That means that the appellate counsel did not file ineffective assistance of counsel of trial counsel for not preservinq a valid error. This also constitutes ineffectiveness of counsel. Too many errors at trial level and appellate level and you can find that the petitioner is not havinq any afir and impartial hearinq or qettinq any effective assistance of counsel to prove his case.POINT OF ERROR "ONE"

THE COURT OF APPEALS ERRORED IN HOLDING THAT THE EVIDENCE WAS SUFFICIENT TO INTENT

The standard of review in this case is JACKSON V.VIRGINIA, 443U.S. 307, 319,99 S.Ct.2781,61 L.Ed.2d 560 (1979)-and under IN RE WINSHIP, 397 U.S.358, 90 S.Ct.1068,25 L.Ed.2d 368 (1970). The Constitional standard recognized in the WINSHIP case was expressly phrased, as one that protects an accused against a conviction except on "proof beyond a reasonable doubt...". In short, WINSHIP presupposes as an essential of the due process quaranteed by the FOURTEENTH AMENDMENT that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof-defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense. Petitioner argues that the evidence here is insufficient to show that he had the statutorily required intent to "arouse or gratify...sexual desire." TEX.PENAL CODE ANN. § 21.11. Petitioner claims that the State did not prove beyond a reasonable doubt every fact necessary to constitute the crime in which he was charged. The specific intent required for the offense of indecencywith a child-intent to arouse or qratify the sexual desire of any personcan be inferred from the defendant's conduct. Chloe stated that she and the petitioner were watchinq television when petitioner beqain to rub her breast, thiqhs and buttocks. She also stated at trial that when she went to her room, petitioner followed her and sexually attacked her. Rita, the childs mother at one point came into the room and asked if everythinq was ok and they said yes. At no time durinq the trial or during Chloe's testimony did she allude to paetitioner havinqa errection nor did she allude to him havinq one in her room, s At trial we heard testimony of petitioner havinq Epilepsy or a form thereof. In MERCKS MEDICAL MANUAL, Home Edition,paqe 376-381, it states that some 

### epileptic seizures maybe triqqered byrepetitive sounds,flashinq liqhts,video qames,or even touchinq certain parts of the body. Even minor stimuli cantrigger *a siezure in people with epilepsy. The Court had heard from creditable testimony as to the defendant having epileptic seizures severely inhibiting him from actinq in certain instances and thus the jury havinq found that the <- defendant havinq been unable to be able to attack the alleqed victim sexually found him quilty of a lesser form of sexual transqressions in the form of indecency by contact which if medical assistance throuqh MERCK is to be believed of Epeleptic disorders it would have been impossible for the defendant to have also committed this charqe too. But to return to the intent of the arouse and sexual gratify—, it would be prudent to say that every male knows that to be sexually stimulated by him touching a female in a sexual way would bring forth a errection and possibly a ejaculationu. In one so young as the defendant was at that time a premature ejaculation would have been in order. Did Chloe testify to the erection or possibly a wet stain on the front of the defendants pants? Did she testify as to what kind of pants the petitioner was wearinq as to be able to see a erection? A "reasonable doubt," at a minimum, is one based upon "reason." Yet a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt, and the same may be said of a trial judge sitting as a jury. Even in a federal trial such an occurrence has traditionally been deemed to rectuire reversal of the conviction. GLASSER V. UNITED STATES, 315 U.S.60,80,62 S.Ct.457,469,86 L.Ed. 860; BRONSTON V. UNITED STATES, 409 U.S.352,93 S.Ct.595,34 L.Ed.2d 568. Petitioner alleqes that the evidence in support of his conviction cannot be fairly characterized as sufficient to have a rational trier of fact to find quilt beyond a reasonable doubt and has claimed a constitutional claim. The^Court of Criminal Appeals has the jurisdiction to examine this claim of insufficiency of factual evidence. See CLEWIS V. STATE, 922 S.W.2d 126 (Tex.Crim.App.1996). This is a unique case in which the appellant brings forth a theory of the basic intent to prove whether the State proved that the defendant had been aroused or had sexually gratified himseld by the touching of Chloe as to prove 

### beyond a reasonable doubt or in this case a preponderance of the evidence in which to prove thier case.Petitioner will concede.that: the Court in BROOKS V. STATE, 323 S.W.3d 893,912 (Tex.Crim.App.2010) along with JACKSON,443 U.S.307,319,)1979) are the cases deciding the sufficiency of the evidence under the standards of review. But, he also states that under the evidence that the State presented did not show that Vanover intended to arouse or gratify the sexual desire of anyone. In BAZANES V. STATE, 310 S.W.3d32,40-41 (Tex.App.-Fort Worth 2010), E.C.B. testified that she awoke to Bazanes trying to kiss her and trying to put his tongue in her mouth, that he put his hand under her underwear and touched her genitals...ect... She stated that his penis felt "hard"! In the instant case Chloe did not tell a similar tale. So therefore she did not state that Vanover's penis was hard to show that he had been aroused. In JACKSON, the court held that the Due Process Clause of the FOURTEENTH AMENDMENT forbids any conviction based on evidence insufficient to persuade a rational factfinder of guilt beyond a reasonable doubt.TIBBS V. FLORIDA, 457 U.S.31,102,'S.Ct.2211,72 L.Ed.2d 652/ (1982)(citing JACKSON V. VIRGINIA,443 U.S.307); IN RE WINSHIP, 397 U.S.358 (1970) Therefore under the FOURTEENTH AMENDMENT the Sttae did not prove beyond a reasonable doubt the existence of every element of the charge of indecency with a minor/child. Therefore the State did not prove beyond a reasonable doubt that petitioner was guilty of this charge.

II. POINT OF ERROR TWO DID THE COURT OF APPEALS ERR IN HOLDING THAT THE COURT'S CHARGE DID NOT RESULT IN EGREGIOUS HARM. Petitioner.. claims egregious harm from the trial court's failure to properly define the mental state required for commission of the offense of indecency with a child by sexual conatct. The Court of Appeals agreed that the charge was erroneous,but that they concluded that petitioner was not egregiously harmed as a result. The standard of review in this argument is ALMANZA V. STATE, 686 S.W.2d 

### 157,171 (Tex.Crim.App.1984)(op.on reh'g). Petitioner concedes that his counsel did not preserve this argument at thetrial level and that this would be met with ineffective assistance argued at a later date, but since this is a fundamental right to be heard by a fair and impartial tribunal or jury of his peers he states that the extra specific intent that is nessesary to complete the crime was unwarranted and a abuse of power to confuse the jury. If the charge would have been specific as to;just the definition Of the sexual contact it would have been clear as to what the jury would be convicting the petitioner of. The State wants everyone to be knowlegable about the law as they are. You have people in juries from all walks of life whom are not up on the. the legalesse of terms or the fact that a jury charge must allege only what is to be proved. Here, TEXAS PENAL CODE ANN. §21.11 

### (a)(1), states that (a) A person commits an offense if,with a child younger than 17 years of age, whether the child is of the same or opposite sex, the person, (1) engages in sexual contact with the child or causes the child to . 

### engage in sexual contact;or (2) with the intent to arouse or gratify the sexual desire of any person, (a)(3)(c) In this section,"sexual contacf'means the following acts,if committed with the intent to arouse or gratify the sexual 

### desire of any person: (1) any touching by a person including touching through clothing,of anus,breast,or any part of the genitals of a child;or (2) any touching of any part of the body of a child, including touching through clothing, with the anus,breast,or any part of the genitals of a person. No where in this instruction is the intentional or knowingly as required in the proof of SECTION 22.011 under PENAL CODE titled SEXUAL ASSAULT. Under the TEXAS CODE OF CRIMINAL PROCEDURE 36.19, it states that whenever it appears by record in any criminal action upon appeal that any requirement of ARTICLES 36.14,36.15,36.16,36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of the defendant,or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal of special charges shall be made at the time of the trial. The Charge herein shows that the jury was led to consider an extra element of Intentionally and Knowingly which is not a part of the charge therefore leading them to substitute an illegal finding of guilt.

8.Intentional and knowingly are elements under PENAL CODE 22.011 and therefore are not in the intents needed to prove the intent to arouse or gratify the sexual desire of oneself or another as in PENAL CODE 22.11. So therefore the extra added intents would have led to confuse the jury as to what had to be proved by the State beyond a reasonable doubt. So here the Petitioner states that he has a fundamental error in the facts because this Court's charge would have him prove a extra intent not alleged in the facts of the indictment for the charge of Indecency with a child by sexual contact. It was not required for him to prove that he intentionally and knowingly touched Chloe on the buttocks,leg or breast, it was required to be proved that he touched Chloe with' the intent to arouse or gratify the sexual desire of any person... See PENAL CODE 22.11. Therefore by allowing the Charge to the Jury as is to stand and find no egregious error would be akin to finding no ineffectiveness to a trial where counsel sleeps during the trial itself. The jury was left to infer the intents as they understood them, this is not the definition of the Penal Code involved and is unfair and impartial as to impede the jury from thier truth fact finding process. Therefore the Petitioner would asks this court to find egregious harm in the Court's charge as to deprive the defendant of a fair opportunity to argue 

### the facts and findings as addressed by the TEXAS PENAL CODE ANN. §22.11 as he was indicted on and had presented argument on in court without the added intents.

CONCLUSION
In conclusion, Petitioner would asks that this Court rule that the State did not prove beyond a reasonable doubt or by a preponderance of the evidence that he comitted Indecency with a child by sexual contact as alleged in his indictment because the State did not prove every element of the charge beyond a reasonable doubt that he aroused or gratified his sexual desire. Further he asks this Court to rule that it was egregious harm to allow the intents from 

### one penal code to transfer over to another for the purposes of proof necessary 

### to prove intent. This only led to confuse the jury as to wheteher to find him 

### guilty of Intentionally and Knowingly instead of whether he aroused and gratifiedhis sexual desire by touching Chloe.

PRAYER Petitioner, Matthew Vanover, prays that this Court issue forth a ruling 

### in his favor and grant him a new trial on the sufficiency of the evidence and or find egregious harm in the jury charge as to allow him a new trial and or resenetncing.

RESPECTFULLY SUBMITTED,

10. 

## Ml. MATTHEW VANOVER TDCJ-ID # 1904572CERTIFICATE OF SERVICE
I, MATTHEW VANOVER, PETITIONER IN THE ENCLOSED STYLED AND NUMBERED CAUSE DO HEREBY CERTIFY THAT A TRUE AND CORRECT COPY OF THE FOREMENTIONED DOCUMENT IS BEING SENT FIRST-CLASS PRE-PAID POSTAGE TO G.CALVIN GROGAN V./ASSISTANT DISTRICT ATTORNEY OF HUNT COUNTY, TEXAS AT HUNT COUNTY COURTHOUSE, P.O.BOX 441, GREENVILLE, TEXAS, 75403 ON THIS THE 30th DAY OF DECEMBER, 2014 by placing it in the internal mailing system on the Dolph Briscoe unit.

MATTHEW VANOVER

INMATES UNSWORN DECLARATION

I, MATTHEW VANOVER, PETITIONER IN THE ENCLOSED STYLED AND NUMBERED CAUSE DO HEREBY CERTIFY UNDER PENALTY OF PERJURY THAT THE INFORMATION ENCLOSED IS TRUE AND CORRECT AS TO THE BEST OF MY RECOLLECTION AND KNOWLEDGE OF THE EVENTS FROM THE TRIAL.

MATTHEW VANOVER

11.APPENDIX "A"
SIXTH COURT OF APPEALS MEMORANDUM OPINIONIn The 

## Court of Appeals 

## Sixth Appellate District ofTexas at Texarkana

No. 06-13-00256-CR

MATTHEW RYAN JERRY VANOVER, Appellant V. THE STATE OF TEXAS, Appellee


### On Appeal from the 196thDistrict Court Hunt County, Texas Trial Court No. 28,845

Before Morriss, C.J., Carter and Moseley, JJ. 

### Memorandum Opinion by Justice CarterMEMORANDUM OPINION 

## Matthew RyanJerry Vanoverwas convictedofindecency with achildbysexual contact1 and was sentenced to seven years' imprisonment. Because (1) error in the court's charge did not 

### result in egregious harm, and (2) the evidence is legally sufficient to support the conviction, we affirm thejudgment ofthe trial court. I. Background 

## On a December evening in 2008, twelve-year-old Chloe Cherry2 and Vanover, her 

## seventeen-year-old cousin, were watching television together atChloe's home.3 The two were alone in the room as Chloe's mother, Rita, had gone to bed for the evening. As they were 

### watching television, Vanover began rubbing Chloe's thigh, breasts, and buttocks. This conduct 

### continued in the face of Chloe's protests. At one point during the evening, Chloe texted her older sister in Kentucky to tell her that Vanover was hurting her. Chloe's sister then sent Rita a 

### textmessage, indicating that Vanover was bothering Chloe. At that point, Rita checked on Chloe 

## and Vanover, but was told byboth that nothing was wrong.4 Chloe took the opportunity to
retreat to her room when her mother came out to check on her.

'SeeTex. PenalCode Ann. §21.11(a)(1)(West2011). 2This is apseudonymusedtoprotecttheidentity of the childvictim. 3Chloe was seventeen at the time oftrial. 

### "Chloe testified toadditional conduct byVanover, which could have resulted in aconviction foraggravated sexual 

### assault. Because thejuryfound Vanovernotguilty ofthis charge, ourrecitation of thefacts andouranalysis here is based solely on theevents supportingthecharge ofindecency with achildbysexual contact, ofwhich Vanoverwas convicted.

## In September 2010, Chloe showed Rita some text messages she had recently received 

# fromVanover. Inoneofthemessages, Vanoverstatedthathe was sorry "forallthethings I've everdonetoyou." WhenRitaaskedChloewhatthatmeant, Chloebeganto cry. Chloethentold 

# RitathatVanoverhadtouchedheronherbreasts andputhis handinherpants. The following day, RitaandChloewenttotheHuntCountySheriffs OfficetoreportVanover's conduct. II. ErrorinCourt's Charge DidNotResultinEgregious Harm 

## Vanover claims egregious harm from the trial court's failure to properly define the 

## mental staterequiredforcommissionofthe offense ofindecencywith achildby sexual contact. While we agree that the court's charge was erroneous, we cannot conclude that Vanover was egregiously harmed as a result. A. Standard ofReview 

## Inanalyzing a jurycharge complaint, we review the charge undertheAlmanza standard. 

## Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. onreh'g). Ourfirst duty is to determine whether error exists in the charge. On a finding oferror, we must determine whether sufficient harm resulted from the error to compel reversal. Ngo v. State, 175 S.W.3d 738, 743^14 (Tex. Crim. App. 2005). The degree ofharm required toreverse the trial court's 

## judgment depends onwhetherthe appellantproperly objectedtothe error. Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994). When aproper objection ismade attrial, we need 

## onlyfind "some harm" to reversethe trial court'sjudgment. Ngo, 175 S.W.3dat743-^4 (citing Almanza, 686 S.W.2d at 171). In the case ofunpreserved error, reversal isrequired only when 

## the record shows "egregious harm" to the defendant. Id. (citingAlmanza, 686 S.W.2d at 171).

# "Egregious harm" results from "errors affecting the very basis ofthe case or that deprive the defendantofavaluableright, vitallyaffectadefensivetheory, ormakethe case forconvictionor punishment clearly and significantly more persuasive." Boones v. State, 170 S.W.3d 653, 660 

## (Tex. App.—Texarkana 2005, no pet.) (citing Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991)). B. Analysis 

## Here, there was no objection attrial to the charge. Onemethodofcommittingindecency with achild by sexual contact occurs ifaperson, with achildyoungerthan seventeen years and not theperson's spouse, "engages in sexual contactwith the child orcauses the childto engage insexual contact." Tex.Penal CodeAnn. § 21.11(a)(1). Forpurposes ofthis statute, "sexual 

## contact" is defined as "anytouching by a person, including touching through clothing, ofthe anus, breast, or any part ofthe genitals ofa child" if committed "with the intent to arouse or 

### gratifythesexual desire of anyperson." Tex. PenalCodeAnn. §21.11(c)(1) (West2011). Here, the application paragraph ofthe court's charge stated, Now, ifyou find from the evidence beyond a reasonable doubt that on or about 

### the 1st day of December, 2008, in Hunt County, Texas, the defendant, MATTHEW RYAN JERRY VANOVER, did then and there with intent to arouse 

### or gratify the sexual desire of MATTHEW RYAN JERRY VANOVER, intentionally or knowingly engage in sexual contact with CHLOE CHERRY 

### (pseudonym) by touching the genitals or breast(s) of CHLOE CHERRY 

### (pseudonym), a child younger than 17 years of age, then you will find the defendant "Guilty" as charged in Count Two. 

### Theapplication paragraph here listed theculpable mental states ofintentionally andknowingly with the specific intent necessary to complete the crime. Vanover, therefore, contends that the 

### jury could have convicted him forintentionally orknowingly engaging in sexual contact with 4

### Chloe, when the proper mental state for the offense is the specific intent "to arouse or gratify the 

### sexual desire of any person." SeeTex. Penal Code Ann. § 21.11(c)(1); see also Rodriguez v. \ State, 24 S.W.3d 499, 502 (Tex. App.—Corpus Christi 2000, pet. refd). The charge also included full statutory definitions of"intentionally" and "knowingly." 

### Ajury charge which injects the terms intentionally and knowingly into the specific intent offense ofindecency with a child is error. Bazanesv. State,310 S.W.3d 32, 37 (Tex. App.—Fort 

### Worth 2010, pet. refd) (finding harmless error);Rodriguez, 24 S.W.3d at 502;see Jonesv. State, 229 S.W.3d 489, 492 (Tex. App.—Texarkana 2007, no pet.). The State concedes error in the charge, but contends any resulting harm was not egregious. 

### We next review the record to determine whether the charge error harmed Vanover. See 

### Almanza, 686 S.W.2d at 174. In conducting this analysis, we consider (1) the charge itself, 

### (2) theprobative evidence, (3) the arguments ofcounsel, and (4) any otherrelevant information revealed by therecord of the trial as awhole. Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. 

### App. 2011) (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)); Jones, 229 S.W.3dat493. 

## Looking atthe charge as awhole, the abstract portion includes the correct definition of j i i 

### the offense ofindecency with achildbysexual contact, including the specific intenttoarouse or j 

## gratify. This portion ofthe charge thus informedthejurywhatthe State was requiredto prove.' See Bazanes, 310 S.W.3d at 37. 

## Althoughthe charge definedintentionallyandknowingly andincludedthoseterms inthej application portion ofthe charge, those terms were not included inthe abstract portion ofthej

### charge defining the offense of indecency with a child by sexual contact. Further, under the \ application paragraph, thejury was instructed to return a guilty verdict only ifit found Vanover : 

### did, with "intent to arouse or gratify [his] sexual desire . . . intentionally or knowingly engage in j sexual contact . . . ." Given this phrasing, there is little risk thejury might believe any one of these culpable mental states, standing alone, would permit conviction. In the context of the j 

### entire charge, which correctlyinstructedthejurythat itmustfind Vanoveractedwiththe specific j
i 

### intent to arouse or gratify his sexual desire, the erroneous application paragraph appears less ! 

### harmful. SeeBazanes, 310S.W.3dat37. ! 

## Inreviewing the state ofthe evidence, we note thatthe issue ofVanover's intentwas not j
a contested issue at trial. Instead, Vanover's defense focused on Chloe's credibility. Likewise, 

### rather than focusing on the erroneous mental states in the jury charge, the State focused on the commission ofthe offense. As recognized in Jones, i 

## [T]he intent of[Appellant] in touching [the child victim,] while it was apart of j the State's required proof, was not a contested issue and consequentially [he] could not be egregiously harmed by the definition of the intentional and knowing state ofmind. i 

## Jones, 229 S.W.3d at494 (citing Saldivar v. State, 783 S.W.2d 265, 268 (Tex. App.—Corpus j Christi 1989,no pet.) ("Where no defense is presented which would directly affect an assessment j 

### ofmental culpability, there is no harm in submitting erroneous definitions of 'intentionally' and i 'knowingly.'")). 

### Thejuryargument likewise does notindicate egregious harm. The State'sonly comment j on the issue of intent included the concept of gratification. The state asked, "Do you thinkj 

## there's any waypossible that wasn't intentionally to gratify Mr. Vanover, the Defendant. No." j 6 I

## The only mention ofintent was made in connection with the intent to gratify Vanover. No 

## referencewas madeto anintentionalorknowingtouchingduringthe State'sjuryargument. Based onthe foregoing analysis, we conclude that Vanoverwas not egregiously harmed by thejury instructions. 

### III. Sufficient Evidence ofSpecific Intent 

## Vanover next contends the evidence was insufficient to support the conviction. His sufficiency argumentisnot, however, thatthe evidence failedto showbeyondareasonable doubt that he touched Chloe in the manner described at trial. Instead, Vanover maintains that the 

### evidence was insufficienttoshowtheintenttoarouse orgratifyhis sexual desire. A. Standard ofReview 

## Inevaluating the legal sufficiencyofthe evidence, we review all the evidence inthe light most favorable to thejury's verdict todetermine whether anyrationaljurycouldhave found the essential elements of the offense beyond areasonable doubt. Brooks v. State, 323 S.W.3d 893, 

### 912 (Tex. Crim. App. 2010) (citingJackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfieldv. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. refd). We examine legal 

### sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury "to fairly resolve conflicts intestimony, to weigh theevidence, and to 

### draw reasonable inferences from basic facts toultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citingJackson, 443 U.S. at 318-19);Smith v. State, 401 S.W.3d 915, 920 (Tex. App.—Texarkana 2013, pet. refd).

### Legal sufficiency ofthe evidence is measured by the elements ofthe offense as defined by a hypothetically correctjury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correctjury charge "sets out the law, is authorized by the indictment, 

### does not unnecessarily increase the State's burden ofproofor unnecessarily restrict the State's theories ofliability, and adequately describes the particular offense for which the defendant was tried." Id. B. Analysis 

### Vanover argues that the evidence is insufficient to show that he had the statutorily



### .required intent to "arouse or gratify . . . sexual desire." SeeTex. Penal Code Ann. § 21.11

(West2011). The specific intent required for the offense ofindecency with a child—intent to 

### arouse orgratify thesexual desire of anyperson—can beinferred from thedefendant's conduct. Bazanes, 310 S.W.3d at 40 (citingMcKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 

### [Panel Op.] 1981)); seeMoore v. State, 397 S.W.3d751, 754 (Tex. App.—San Antonio 2013, no 

## pet.). "An oral expressionofintentisnotrequired . .. ." Williams v. State, 305 S.W.3d 886, 891 (Tex. App.—Texarkana 2010, no pet.) (citing Couchman v. State, 3 S.W.3d 155, 163 (Tex. App.—Fort Worth 1999, pet. refd)); seeAbbott v.State, 196 S.W.3d 334, 341 (Tex. App.— 

### Waco 2006, pet. refd) (jury couldinferintenttoarouse orgratify sexual desire from defendant's act oftouching child's genitals). 

### Chloe testified thatVanover rubbed herthighs, breasts, andbuttocks as the pairwatched 

## television. This testimony regarding Vanover's conduct is sufficient evidence from which a 

## jury—as the sole judge ofthe credibility ofthe witnesses and the weight to be given their

## testimony—could reasonably infer that such conduct was undertaken to arouse or gratify Vanover's sexual desire. SeeBazanes, 310S.W.3dat40. We, therefore, conclude that there 

### was sufficient evidence to find the specific intentnecessary to support Vanover's conviction of indecency with a child by sexual contact. We overrule this point oferror. IV. Conclusion 

### We affirm the trial court'sjudgment.

Date Submitted: August 13, 2014 Date Decided: September 3, 2014 Do Not Publish Jack Carter Justice