/3i3-/Y

ORIGINAL RECEIVED IN

ThG-'.J'.iricrf Appeals

Sixth District

JAN 0 a 2015

NO.

ioxarkcna. Texas >, •'

De-ora Autrey, Clerk in the court of criminal appeals

AUSTIN , TEXAS

MATTHEW VANOVER

PETITIONER

VS.

STATE OF TEXAS

RESPONDENT

RECBVED IN

COURT Or CMAL APPEALS

\ JAN 23 2015

Abe! Acosta, Clerk

FILED IN

COURT OF CRIMINAL APPEALS

•WJ 2 3 2,Jtj

Abel Acosta, 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 ATTORNEY
TABLE 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

11
INDEX 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

5,6
STATEMENT 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 whether
the 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 havinq
sexual 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 indecency

with 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 can
trigger *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 the
trial 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 gratified
his 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 # 1904572
CERTIFICATE 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 OPINION
In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-13-00256-CR

MATTHEW RYAN JERRY VANOVER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 196th District Court

Hunt County, Texas

Trial Court No. 28,845

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

Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

Matthew Ryan Jerry Vanover was convicted ofindecency with a child by sexual 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 the judgment 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 at Chloe'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

text message, indicating that Vanover was bothering Chloe. At that point, Rita checked on Chloe

and Vanover, but was told by both that nothing was wrong.4 Chloe took the opportunity to

retreat to her room when her mother came out to check on her.

'SeeTex. Penal Code Ann. §21.11(a)(1) (West2011).

2This is a pseudonym usedto protect the identity of the childvictim.

3Chloe was seventeen at the time oftrial.

"Chloe testified to additional conduct byVanover, which could have resulted in a conviction for aggravated sexual

assault. Because the jury found Vanover notguilty ofthis charge, ourrecitation of the facts andouranalysis here is

based solely on the events supporting the charge of indecency with a child by sexual contact, of which Vanover was

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

from Vanover. In one ofthe messages, Vanover stated that he was sorry "for all the things I've

ever done to you." When Rita asked Chloe what that meant, Chloe began to cry. Chloe then told

Rita that Vanover had touched her on her breasts and put his hand in her pants. The following

day, Rita and Chloe went to the Hunt County Sheriffs Office to report Vanover's conduct.

II. Error inCourt's Charge Did Not Result inEgregious Harm

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

mental state required for commission ofthe offense ofindecency with a child by 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 of Review

In analyzing a jury charge complaint, we review the charge under the Almanza standard.

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). Our first duty is

to determine whether error exists in the charge. On a finding of error, 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 of harm required to reverse the trial court's

judgment depends onwhether the appellant properly objected to the error. Abdnor v. State, 871

S.W.2d 726, 732 (Tex. Crim. App. 1994). When a proper objection is made at trial, we need

only find "some harm" to reverse the trial court's judgment. Ngo, 175 S.W.3d at 743-^4 (citing

Almanza, 686 S.W.2d at 171). In the case of unpreserved error, reversal isrequired only when

the record shows "egregious harm" to the defendant. Id. (citing Almanza, 686 S.W.2d at 171).
"Egregious harm" results from "errors affecting the very basis of the case or that deprive the

defendant ofa valuable right, vitally affect a defensive theory, ormake the case for conviction or

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 at trial to the charge. One method ofcommitting indecency

with a child by sexual contact occurs ifa person, with a child younger than seventeen years and

not the person's spouse, "engages in sexual contact with the child or causes the child to engage

in sexual contact." Tex. Penal Code Ann. § 21.11(a)(1). Forpurposes of this statute, "sexual

contact" is defined as "any touching by a person, including touching through clothing, of the

anus, breast, or any part of the genitals of a child" if committed "with the intent to arouse or

gratify the sexual desire of anyperson." Tex. Penal CodeAnn. § 21.11(c)(1) (West 2011).

Here, the application paragraph ofthe court's charge stated,

Now, if you 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.

The application paragraph here listed the culpable mental states of intentionally and knowingly

with the specific intent necessary to complete the crime. Vanover, therefore, contends that the

jury could have convicted him for intentionally or knowingly 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." See Tex. 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."

A jury charge which injects the terms intentionally and knowingly into the specific intent

offense ofindecency with a child is error. Bazanes v. 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 Jones v. 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) the probative evidence, (3) the arguments of counsel, and (4) any otherrelevant information

revealed by the record of the trial as a whole. 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 at the charge as a whole, the abstract portion includes the correct definition of j

i

i

the offense of indecency with a child by sexual contact, including the specific intent to arouse or j

gratify. This portion ofthe charge thus informed the jury what the State was required to prove.'

See Bazanes, 310 S.W.3d at 37.

Although the charge defined intentionally and knowingly and included those terms in the j

application portion of the charge, those terms were not included in the abstract portion of the j
charge defining the offense of indecency with a child by sexual contact. Further, under the \

application paragraph, the jury was instructed to return a guilty verdict only if it 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 the jury might believe any one of

these culpable mental states, standing alone, would permit conviction. In the context of the j

entire charge, which correctly instructed thejurythat it must find Vanover acted with the specific j

i

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

harmful. SeeBazanes, 310S.W.3dat 37. !

In reviewing the state ofthe evidence, we note that the issue ofVanover's intent was 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 a part 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 at 494 (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

of mental culpability, there is no harm in submitting erroneous definitions of 'intentionally' and i

'knowingly.'")).

The jury argument likewise does not indicate egregious harm. The State's only comment j

on the issue of intent included the concept of gratification. The state asked, "Do you think j

there's any way possible that wasn't intentionally to gratify Mr. Vanover, the Defendant. No." j

6 I
The only mention of intent was made in connection with the intent to gratify Vanover. No

reference was made to an intentional or knowing touching during the State'sjury argument.

Based on the foregoing analysis, we conclude that Vanover was not egregiously harmed

by the jury instructions.

III. Sufficient Evidence of Specific Intent

Vanover next contends the evidence was insufficient to support the conviction. His

sufficiency argument is not, however, that the evidence failed to show beyond a reasonable doubt

that he touched Chloe in the manner described at trial. Instead, Vanover maintains that the

evidence was insufficient to show the intent to arouse or gratify his sexual desire.

A. Standard of Review

In evaluating the legal sufficiency ofthe evidence, we review all the evidence inthe light

most favorable to thejury's verdict to determine whether anyrational jury could have found the

essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893,

912 (Tex. Crim. App. 2010) (citing Jackson 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 in testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate 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 of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). The hypothetically correct jury charge "sets out the law, is authorized by the indictment,

does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's

theories of liability, 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." See Tex. Penal Code Ann. § 21.11

(West 2011). The specific intent required for the offense of indecency with a child—intent to

arouse or gratify the sexual desire of any person—can be inferred from the defendant's conduct.

Bazanes, 310 S.W.3d at 40 (citing McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App.

[Panel Op.] 1981)); seeMoore v. State, 397 S.W.3d 751, 754 (Tex. App.—San Antonio 2013, no

pet.). "An oral expression ofintent is not required . .. ." 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)); see Abbott v.State, 196 S.W.3d 334, 341 (Tex. App.—

Waco 2006, pet. refd) (jury could infer intent to arouse or gratify sexual desire from defendant's

act oftouching child's genitals).

Chloe testified that Vanover rubbed herthighs, breasts, and buttocks as the pair watched

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

jury—as the sole judge of the credibility of the 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, 310 S.W.3dat40. We, therefore, conclude that there

was sufficient evidence to find the specific intent necessary to support Vanover's conviction of

indecency with a child by sexual contact.

We overrule this point of error.

IV. Conclusion

We affirm the trial court's judgment.

Date Submitted: August 13, 2014

Date Decided: September 3, 2014

Do Not Publish

Jack Carter

Justice