Affirmed and Opinion Filed July 23, 2024 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-22-01237-CR ALAN FREDERICK BEARDEN, Appellant V. THE STATE OF TE XAS, Appellee On Appeal from the 86th Judicial District Court Kaufman County, Texas Trial Court Cause No. 19-40112-86-F MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Carlyle Opinion by Justice Partida-Kipness A jury found Appellant Alan Fredrick Bearden guilty of continuous sexual abuse of a child and assessed punishment at life imprisonment. The trial court entered judgment in accordance with the ju ry’s verdict. Bearden brings two issues on appeal: (1) the evidence is insufficient to support the verdict; and (2) the trial court committed reversible error by submitti ng an erroneous definition of “sexual contact” in the jury charge. We affirm.–2– BACKGROUND 1 The complaining witness Charlotte lived across the street from Bearden in the Heartland area of Kaufman County. When Charlotte was in fourth grade, she befriended Bearden’s granddaughter, Emily, who often visited Bearden at his home. Because of this friendship with Emily, Ch arlotte began spending significant time at Bearden’s home, sometimes sleeping over when Emily was there. When Charlotte was in fourth or fift h grade and about ten years old, Bearden began sexually abusing her. Bearden would often touch Charlotte’s inner thigh, then move up and touch her vagina. This occurre d in various locales. On one instance, Charlotte was sitting on a couch in the ga rage with Bearden next to her. While Charlotte was using a computer tablet, Bearden put his hand under her pants and underwear and touched her vagina. This happened again on numerous occasions. Charlotte also described how Bearden would allow Charlo tte to drive a golf cart in the neighborhood. While Charlotte drove, Be arden sat next to her, put his hand under her pants, and began touching her vagina. Bearden, Emily, and Charlotte would of ten sleep in the same bed. Emily’s grandmother (Nana) would sleep in the mast er bedroom, while Bearden and the girls usually slept in a back bedroom separate from Nana. While in th is separate bedroom, Bearden touched Charlotte’s vagina on repeat ed occasions. After Nana died in June

1 We use the pseudonyms given at trial to protect the identity of the complaining witness and another child victim.–3– 2016, Bearden moved into the master bedr oom, where the sexual abuse continued. According to Charlotte, B earden touched her vagina countless times from the time Charlotte was ten to fourteen years old. On several instances, Bearden penetrated Charlotte’s vagina with his fingers. Occasionally, Bearden put Charlotte’s hand on his penis and encouraged her to touch him more. Bearden also touched Emily’s breast, buttocks, and va gina on many occasions. In October 2017—when Charlotte was twelve years old—she, Emily, and Bearden went to Town East Mall. A ma ll patron alerted security after observing Bearden’s behavior with the girls. A secu rity officer then observed Bearden and noticed him invading their personal space, stroking Charlotte’s hair, and appearing to touch Charlotte’s leg while the girls we re seated in massage chairs. The officer approached Bearden to investigate. Bear den became defensive and denied any wrongdoing. The officers called Charlotte’s and Emily’s pare nts. Charlotte’s mother picked Charlotte up from the mall. After the incident, Ch arlotte’s parents forbade her from going into Bearden’s house. Howe ver, Charlotte con tinued to visit the Bearden residence, and th e sexual abuse continued after the Town East Mall incident. In May 2019—when Charlotte was f ourteen years old—her parents discovered her in possession of an Apple wa tch. Upon investigati on, they discovered Bearden had purchased the watch for Char lotte at her insistence. Upon further questioning by her mother, Charlotte stated Bearden had touched her. Charlotte’s–4– parents called police, and Char lotte was interviewed by a forensic examiner with the Kaufman County Children’s Advocacy Cente r. During the interview, Charlotte described the sexual a buse she had experienced from ag es ten to fourteen at the hands of Bearden. Emily was also forens ically interviewed, but she denied any abuse. However, after later therapy sessions, Emily disclosed sexual abuse by Bearden. Bearden was arrested and charged with continuous sexual abuse of a child. The case proceeded to tr ial. The State’s case-in-chief included testimony from Charlotte, Emily, the forensic examiner, i nvestigators, Charlotte’s mother, one of Bearden’s neighbors, and Emily’s therapist. Bearden testified in his defense and denied the accusations. Th e defense also offered te stimony from the forensic examiner and several of Bear den’s other granddaughters. The jury found Bearden guilty of c ontinuous sexual abuse of a child as charged in the indictment and assessed punish ment at life in prison. The trial court entered judgment in accordance with the ju ry’s verdict. This appeal followed. STANDARD OF REVIEW In determining whether the evidence is sufficient to support a conviction, we must consider all 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. Whatley v. State , 445 S.W.3d 159, 166 (Tex . Crim. App. 2014).–5– This “familiar standard gives full play to th e responsibility of the tr ier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id. (quoting Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.Ed. 2d 560 (1979)). When facts support conflicting inferences, the revi ewing court must presume the trier of fact resolved any such conflicts in favor of the prosecu tion and must defer to that resolution. Id. (citations omitted). We defer to the fact finder’s credibility and weight determinations because the fact finder is th e sole judge of the witnesses’ credibility and the weight to be gi ven to their testimony. See Winfrey v. State , 393 S.W.3d 763, 768 (Tex. Crim. App. 2013). ANALYSIS In two issues, Bearden asserts (1) the ev idence was insufficient to support his conviction for continuous sexual abuse of a child; and (2) the trial court committed reversible error by submitting an erroneous definition of “s exual contact” in the jury charge. We address ea ch issue in turn. I. The Evidence Is Sufficient To Suppo rt Bearden’s Conviction In his first issue, Bearden asserts the evidence is insufficient to support his conviction for continuous sexual abuse of a child. We disagree. A. Legal standards—continuous sexual abuse of a child A person commits the offense of continuo us sexual abuse of a child if, during a period that is thirty or more days in du ration, he commits two or more acts of sexual–6– abuse and, at the time of the commission of ea ch act, he is seventeen years of age or older and the victim is a child younger than fourteen. T EX
. P ENAL C ODE § 21.02(b). Relevant here, an “act of sexual abuse” me ans an act of indecency with a child by contact, or sexual assault. Id. § 21.02(c)(2)–(3). A pe rson commits indecency with a child by contact if, with a child youn ger than seventeen years of age, that person engages in sexual contact with the child. Id. § 21.11(a)(1). Ge nerally, “sexual contact” means, with the inte nt to arouse or gratify the sexual desire of any person, any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child. Id. § 21.11(c)(1). However, continuous sexual abuse of a child pursuant to indecency with a child excludes “touching through clothing, the breast of a child.” Id. § 21.02(c)(2). A person commits the offense of sexual assault of a child if, regardless of whether the person knows the age of the child at the time of the offense, he intentionally or knowingly causes the penetr ation of the sexual organ of a child by
any means. Id. § 22.011(a)(2)(A). The exact dates of the abus e need not be proven; th e offense of continuous sexual abuse of a child only requires proof that two or more acts of sexual abuse occurred during a period of thirty days or more. Garner v. State , 523 S.W.3d 266, 271 (Tex. App.—Dallas 2017, no pet); T EX
. P ENAL C ODE § 21.02(d) (jury not required to unanimously agree on which specific acts of sexual abuse were committed by defendant or exact dates when t hose acts occurred, but jury must agree–7– unanimously that defendant, during period of thirty or more da ys, committed two or more acts of sexual abuse). Additionally, child victims are not required to be specific about the dates the abuse occurred. Turner v. State , No. 05-21-00922-CR, 2023 WL 3991662, at *3 (Tex. App.—D allas June 14, 2023, pet. denied) (mem. op., not designated for publication). The testimony of a child victim alone is sufficient to support a conviction for conti nuous sexual abuse of a child. Garner , 523 S.W.3d at 271 (citing T EX
. C ODE C RIM
. P ROC . art. 38.07(a)). B. Application Here, the indictment alleged that duri ng a period thirty or more days in duration, from approximately August 1, 2014 to December 26, 2018, Bearden committed two or more acts of sexual abus e, specifically: (1) touching Charlotte’s genitals; (2) causing Charlotte to touch Be arden’s genitals; and/ or (3) penetrating Charlotte’s sexual organ with his finger. The State’s evidence in support of the charges came primarily from the testim ony of Charlotte, Emily, and forensic examiner Ramirez. Charlotte testified Bearden touched he r vagina on numerous occasions when she was between ten and fourteen years old. She described a time where she and Bearden were sitting on a couc h in the garage, looking at a computer tablet. Bearden put his hand under her pants and underwear a nd touched her vagina. Charlotte stated this happened on numerous occasions, whenever they were on that couch. Charlotte further described an occasion where Bearde n touched Charlotte’s vagina while she–8– was driving a golf cart and Bearden was next to her. Charlotte testified Bearden also touched her vagina while in one or more bedrooms of Bearden’s house, and sometimes Bearden would penetrate Charlotte ’s vagina with his finger. Charlotte also described how Bearden had her touch his penis on a few occasions. The abuse occurred both before and afte r Nana’s death in 2016. Char lotte also stated abuse occurred both before and after the Town East Mall incident in 2017. Emily testified she witnessed Bearden touch Charlotte’s (and Emily’s) vagina on multiple occasions, both before and afte r Nana’s death. Forensic examiner Ramirez testified Charlotte told her Beard en had sexually abused Charlotte over a period of time when she was under fourteen years old. Charlotte told Ramirez Bearden had touched her “girl pa rt” ten or fifteen times. In sum, the jury heard testimony that between the time Charlotte was ten and fourteen years old (1) Bearden touched her genitals on multiple occasions; (2) Bearden caused Charlotte to touch his genitals; and (3) Bearden penetrated Charlotte’s sexual organ with his finger. Ch arlotte’s testimony alone is sufficient to support Bearden’s conviction for continuous sexual abuse of a child, and other witnesses corroborated Ch arlotte’s allegations. Garner , 523 S.W.3d at 271; T EX
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. P ROC . art. 38.07(a); T EX
. P ENAL C ODE §§ 21.02(b), (c)(2)–(3), 21.11(a)(1), (c)(1), 22.011(a)(2)(A). 2

2 Trial testimony established Bearden was well a bove seventeen years of age at the time of the incidents, and Bearden does not cha llenge this element of the crime.–9– Bearden asserts the State did not prove two or more acts of sexual abuse occurred over a period of thirty days. Bearden complains Charlotte made only “vague references” to “touching.” Ho wever, Bearden ac knowledges Charlotte testified he touched her vagina on several instances, as discussed above. These acts support a conviction for contin uous sexual abuse of a child. See T EX
. P ENAL C ODE §§ 21.02(b), (c)(2), 21.11(a)(1), (c)(1). Bearden also complains Charlotte did not provide specificity regarding the timing of the acts. While Charlotte did not give specific dates for the acts, this was not required. Turner , 2023 WL 3991662, at *3. It is not often that children will know, even within a few days, the date s they were sexually assaulted. Sledge v. State , 953 S.W.2d 253, 256 n.8 (T ex. Crim. App. 1997); Montero v. State , No. 05-18-01281- CR, 2019 WL 3229170, at *2 (Tex. App.—Dalla s July 18, 2019, no pet.) (mem. op., not designated for publication). Furthermore, when an indictment alleges an offense occurred “on or about” a certa in date, the State is not required to prove the offense occurred on the specific date alleged, but only that the offense occurred prior to the presentment of the indictment a nd within the limitations period. Sledge , 953 S.W.2d at 255–56; see T EX
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. P ROC . art. 21.02(6). Here, the indictment alleged that duri ng a period thirty or more days in duration, from approximately August 1, 2014 to December 26, 2018, Bearden committed two or more acts of sexual abuse. As discusse d above, witness testimony supports Bearden sexually abused Char lotte on multiple occasions during this–10– timeframe, when Charlotte wa s between the ages of te n and fourteen. Charlotte testified the sexual abuse occurred prior to Nana’s death (June 2016) and after the Town East Mall incident (October 2017). This necessarily entails two acts of sexual abuse during a period of thirty days or more. See Turner , 2023 WL 3991662, at *3. (children’s testimony that defendant comm itted multiple acts of sexual abuse when they were between twelve an d fourteen years old sufficient to support conviction for continuous sexual ab use of a child); Montero , 2019 WL 3229170, at *2–4 (evidence sufficient where victim testified sexual abus e occurred when she was eight years old and occurred two to three times a week until she was twelve); Michell v. State , 381 S.W.3d 554, 561 (Tex. App.—E astland 2012, no pet.) (evidence sufficient to support the conviction for continuous sexual abuse of a child; while child victim could not give specific dates, she described instan ces of sexual abuse occurring over several years and gave details of wh ere the abuse took place, the school grade, or season of the year). The jury had sufficient evidence to conclude Bearden sexually abused Charlotte on at least two occasions thirty or more days apart, when Charlotte was between ten and fourteen years of age. Th e jury acts as the sole judge of the witnesses’ credibility and the weight to be given to their testimony. See Winfrey , 393 S.W.3d at 768. We defer to their finding and determine the evidence was sufficient to prove Bearden committed c ontinuous sexual abuse of a child as charged in the indictment. We overrule Bearden’s first issue.–11– II. Jury Charge In his second issue, Bearden contends the trial court reversibly erred by submitting an incorrect definition of “se xual contact” in the jury charge. We disagree. Our first duty in analyzing a jury-charge issue is to decide whether error exists. Ngo v. State , 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Then, if we find error, we analyze that error for harm. Id. The degree of harm ne cessary for reversal depends on whether the appellant preserved the error by objection. Id. Jury charge error requires reversal when the defendant has properly objected to the charge and we find “some harm” to his rights. Id. When the defendant fails to object or states he has no objection to the charge, we will not reverse for jury charge error unless the record shows “egregious harm” to the defendant. Id. at 743-44. Egregious harm exists if the error aff ects the very basis of the defendant’s case, deprives him of a valuable right, or vitally affects a defensive theory. Lozano v. State , 636 S.W.3d 25, 29 (Tex. Cr im. App. 2021) (citing Ngo , 175 S.W.3d at 750). To determine if the jury charge egregious ly harmed the defendant, we examine the record as a whole, including the entire jury charge, the evidence, the contested issues, and the arguments of counsel, and anything else in the record that informs our analysis. Id. The record must show the defe ndant suffered actual harm, not theoretical harm, and neither pa rty has burden to show harm. Id. Egregious harm is–12– a “high and difficult standard” to meet. Villarreal v. State , 453 S.W.3d 429, 433 (Tex. Crim. App. 2015). Here, Bearden asserts the abstract porti on of the jury charge included the full statutory definition of indecency with a ch ild, including touching the child’s breast. See T EX
. P ENAL C ODE § 21.11(c)(1). Because the offe nse of continuous sexual abuse of a child excludes touching of the breast of a child, Bearden asserts the inclusion of this definition constitu ted reversible error. See id. § 21.02(c)(2). We assume the inclusion of the full statutory definition wa s error. However, Bearden did not object to the jury charge. Therefore, we will not reverse for jury-c harge error unless the record shows “egregious harm.” Ngo , 175 S.W.3d at 743-44. Our Court of Criminal Appeals has stat ed: “Where the application paragraph of the charge correctly instru cts the jury, an error in the abstract instruction is not egregious.” Medina v. State , 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); see also Crenshaw v. State , 378 S.W.3d 460, 466 (Tex. Crim . App. 2012) (“It is the application paragraph of the charge, not the abstract portion, that authorizes a conviction.”). Here, while the abstract por tion of the jury charge c ontained the full statutory definition of indecency with a child, in cluding touching the child’s breast, the application portion of the charge did not allow the jury to convict Bearden for touching Charlotte’s breast. Instead, the a pplication portion required the jury to find Bearden committed two or more of the fo llowing acts of sexual abuse: (1) touching–13– Charlotte’s genitals; (2) causing Charlotte to touch Bearden’s genitals; or (3) penetrating Charlotte’s sexua l organ. The application po rtion of the charge thus correctly instructed the jury on the acts of sexual abuse necessary to find Bearden guilty of continuous sexual abuse of a child. See T EX
. P ENAL C ODE §§ 21.02(b)(1), (c)(2)–(3), 21.11(a)(1), (c)(1 )–(2), 22.011(a)(2)(A). Furt hermore, the application paragraphs mirrored the indictment, and sufficient trial evidence supported Bearden committed each of these types of acts, as discussed above. Any e rror in the abstract portion of the charge does not constitute egregious harm. Medina , 7 S.W.3d at 640. We overrule Bearden’s second issue. CONCLUSION The evidence is sufficient to suppor t Bearden’s conviction for continuous sexual abuse of a child. Furthermore, even if jury charge’s abstract instruction on “sexual contact” was erroneous, there is no egregious harm where the application paragraph correctly instructed the jury on the elements necessary to convict Bearden of continuous sexual abuse of a child. Ac cordingly, we affirm the trial court’s judgment.

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT ALAN FREDERICK BEARDEN, Appellant
No. 05-22-01237-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 86th Judicial District Court, Kaufman County, Texas Trial Court Cause No. 19-40112-86- F.Opinion delivered by Justice PartidaKipness. Justices Pedersen, III and Carlyle participating. Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

. Judgment entered this 23rd day of July, 2024.