CAUSE NUMBER PD-0258-15

IN THE COURT OF CRIMINAL

APPEALS OF TEXAS

CHARLES LEE HODGES,

Petitioner,

vs.

THE STATE OF TEXAS,

Respondent.

SEEKING REVIEW OF THE ELEVENTH COURT OF APPEALS’ JUDGMENT AND

OPINION IN CAUSE NUMBER 02-13-00073-CR

PETITION FOR DISCRETIONARY REVIEW

WM. REAGAN WYNN

SBN: 00797708

KEARNEY | WYNN

ONE MUSEUM PLACE

3100 WEST 7TH STREET, SUITE 420

FORT WORTH, TEXAS 76107

(817) 336-5600

(817) 336-5610 (fax)

rwynn@kearneywynn.com

ORAL ARGUMENT IS REQUESTED ATTORNEY FOR PETITIONER
IDENTITY OF PARTIES AND COUNSEL

The parties to the trial Charles Lee Hodges Defendant

court’s judgment are:

The State of Texas Prosecution

Trial counsel were: Hon. Samuel W. Pettigrew, Jr. Defense Counsel

840 S. Carrier Parkway

Grand Prairie, Texas 75051

Hon. Lisa A. Callaghan Prosecutor

Hon. Dawn N. Ferguson Prosecutor

Tarrant County District Attorney’s Office

401 West Belknap

Fort Worth, Texas 76196

(817) 884-1400

Appellate counsel are: Wm. Reagan Wynn Appellant/Petitioner

Kearney | Wynn

One Museum Place

3100 West 7th Street, Suite 420

Fort Worth, Texas 76107

(817) 336-5600

(817) 336-5610 (fax)

Hon. Edward L. Wilkinson State of Texas

Tarrant County District Attorney’s Office

Appellate Section

Address above

i HODGES v. STATE

 PETITION FOR DISCRETIONARY REVIEW
TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................... i

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT REGARDING ORAL ARGUMENT .........................v

STATEMENT OF PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

QUESTION PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

REASONS FOR REVIEW, ARGUMENTS, AND AUTHORITIES ...........2

I. THE COURT OF APPEALS ERRED BY APPLYING THE ARTICLE

36.19/ALMANZA EGREGIOUS HARM STANDARD RATHER THAN

THE CONSTITUTIONAL ERROR RULE 44.2(a) HARMLESS

BEYOND A REASONABLE DOUBT STANDARD TO THE TRIAL

COURT’S FAILURE TO INFORM THE JURY OF THE STATE’S

ELECTION OF THE SPECIFIC INSTANCE OF CONDUCT UPON

WHICH IT WAS RELYING FOR CONVICTION AFTER THE

DEFENSE REQUESTED THE ELECTION. ..................2

A. The Record Below ..................................2

B. The Court of Appeals Opinion . . . . . . . . . . . . . . . . . . . . . . . . . 5

C. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION . . . 8

CERTIFICATE OF SERVICE ........................................9

Court of Appeals’ Opinion and Judgment . . . . . . . . . . . . . . . . . . . . . . . Appendix 1

ii HODGES v. STATE

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Court of Appeals’ Order Denying Rehearing . . . . . . . . . . . . . . . . . . . . Appendix 2

iii HODGES v. STATE

 PETITION FOR DISCRETIONARY REVIEW
INDEX OF AUTHORITIES

Cases

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g) ......5

Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . 5-7

Dixon v. State, 201 S.W.3d 731 (Tex. Crim. App. 2006) ....................6

Duffey v. State, 326 S.W.3d 627 (Tex. App.–Dallas 2009, no pet.) . . . . . . . . . . 5, 6

Hodges v. State, No. 02-13-00073-CR, 2014 WL 7204668 (Tex. App.–Fort Worth

December 18, 2014, no pet. h.) (mem. op., not designated for publication) . . viii, 2,

3, 5

Phillips v. State, 193 S.W.3d 904 (Tex. Crim. App. 2006) ...................6

Reza v. State, 339 S.W.3d 706 (Tex App.–Fort Worth 2011, pet ref’d) .........5

Statutes and Rules

TEX. CODE CRIM. PROC. ANN. art. 36.19 (Vernon 2006) ....................5

TEX. R. APP. P. 44.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

TEX. R. APP. P. 66.3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

TEX. R. APP. P. 66.3(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

TEX. R. APP. P. 68.4(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

iv HODGES v. STATE

 PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS OF

TEXAS:

COMES NOW CHARLES LEE HODGES, Petitioner, by and through his

attorney of record, WM. REAGAN WYNN, and pursuant to Rule 68, Texas Rules of

Appellate Procedure, files this PETITION FOR DISCRETIONARY REVIEW, and

for such Petition would show this Court as follows:

STATEMENT REGARDING ORAL ARGUMENT

This Petition challenges the court of appeals’ application of the egregious harm

standard set required for unobjected to jury charge error rather than the harmless

beyond a reasonable doubt standard applicable to errors implicating fundamental

Constitutional principles of unanimity and notice to a trial court’s total failure to

inform the jury of the specific conduct elected by the State to support a conviction. 

The court of appeals’ decision in this case is in direct conflict with a decision from

another court of appeals and resolves an important issue of Texas law that has never

been directly resolved by this Court. Therefore, this Court should grant oral argument

so that counsel for both sides may more fully present their positions and answer any

questions this Court may have after preliminarily reviewing this case.

v HODGES v. STATE

 PETITION FOR DISCRETIONARY REVIEW
STATEMENT OF THE CASE

Petitioner was convicted by a Tarrant County jury of one count of indecency

with a child by contact for touching the female sexual organ of his biological daughter

with his hand. Testimony was presented at trial concerning several alleged instances

of conduct that, if believed beyond a reasonable doubt, could have supported a

conviction for indecency with a child. 

Outside the presence of the jury, counsel for the State “elected” to proceed with

the testimony concerning the “first time” the alleged injured party claimed Petitioner

touched her in this manner, i.e., a time when she was nine years old. However, the

jury was never informed of this “election” and the trial court took no action to limit

the jury’s consideration the specific instance elected by the State. The State conceded

that the trial court erred by failing to instruct the jury on the State’s election and the

court of appeals held that the trial court erred by failing to do so. However, the court

of appeals determined that the proper harm standard is the egregious harm standard

set out for unobjected to jury charge error and, applying that standard, held that the

error was harmless.

STATEMENT OF PROCEDURAL HISTORY

By an indictment filed March 17, 2010, Petitioner was charged two counts of

indecency with a child alleged to have been committed on or about August 1, 2009,

vi HODGES v. STATE

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against his biological daughter.[C.R. 6] Count One of the Indictment alleged that

Petitioner, acting with the intent to arouse and gratify his own sexual desire, engaged

in sexual contact by touching his daughter’s female sexual organ.[C.R. 6] Count Two

alleged that Petitioner, acting with the intent to arouse and gratify his own sexual

desire, engaged in sexual contact by touching his daughter’s breast.[C.R. 6]

On November 6, 2012, Petitioner appeared in court with his counsel, was

arraigned, and entered a plea of “not guilty” to both of the allegations in the

Indictment. [2 R.R. 6-8]

Thereafter, a jury was selected,[2 R.R. 16-237] seated,[6 R.R. 237] and

sworn.[6 R.R. 237] The Indictment was read in the presence of the jury and Petitioner

again entered pleas of “not guilty” to both of the allegations against him.[2 R.R. 245-

46]

Trial on the merits was conducted over two days from November 7-8, 2012.[3

R.R. 6-219; 4 R.R. 6-209] On November 9, 2012, the court gave the case to the

jury.[C.R. 89-82; 15 R.R. 90] On November 12, 2012, the jury returned verdicts of

“guilty” to the allegation in Count One of the Indictment and “not guilty” to the

allegation in Count Two of the Indictment.[6 R.R. 7; C.R. 93]

vii HODGES v. STATE

 PETITION FOR DISCRETIONARY REVIEW
The trial on punishment was conducted on January 22, 2013. After hearing

testimony and considering a Presentence Investigation Report, the trial court assessed

Petitioner’s punishment on Count One at incarceration for eight years .[7 R.R. 106]

The trial court entered its Judgment of Conviction by Jury in accordance with

the jury’s verdict on Count One on January 24, 2013.[C.R. 108-09] The trial court

entered its Judgment of Acquittal by Jury in accordance with the jury’s verdict on

Count Two on the same date.[C.R. 111] Petitioner timely filed his Notice of Appeal

on February 19, 2013.[C.R. 121-22] 

The Second Court of Appeals affirmed the trial court’s judgment and sentence

on July 26, 2006. See Hodges v. State, No. 02-13-00073-CR, 2014 WL 7204668

(Tex. App.–Fort Worth December 18, 2014, no pet. h.) (mem. op., not designated for

publication).1

 After receiving two extensions of time, Petitioner timely filed his

Motion for Rearing on January 26, 2015. The Second Court of appeals denied the

Motion for Rehearing on February 5, 2015.2

1

 A copy of the Court of Appeals’ Opinion is attached to this Petition as

Appendix 1. See TEX. R. APP. P. 68.4(i).

2

 A copy of the Court of Appeals’ Order Denying Rehearing is attached to this

Petition as Appendix 2.

viii HODGES v. STATE

 PETITION FOR DISCRETIONARY REVIEW
On March 10, 2015, this Court entered an order granting Petitioner’s First

Motion for Extension of Time to File Petition for Discretionary Review. Pursuant to

the Order, this Petition is timely if filed in this Court on or before April 8, 2015.

ix HODGES v. STATE

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QUESTION PRESENTED FOR REVIEW

Petitioner was convicted of one count of indecency with a child by

contact, but testimony was presented of several separate incidents of

conduct alleged to have been committed by Petitioner against the alleged

injured party that could have supported conviction for that single count. 

Petitioner’s trial counsel requested that the State be forced to elect a

specific instance of alleged conduct, the trial court purported to grant this

request, and, outside the presence of the jury, the State announced its

election. However, the election was erroneously never communicated

in any way to the jury. Did the court of appeals err by analyzing the

harm arising from this error under the egregious harm standard set

required for unobjected to jury charge error rather than the harmless

beyond a reasonable doubt standard applicable to errors implicating

fundamental Constitutional principles of unanimity and notice?

1 HODGES v. STATE

 PETITION FOR DISCRETIONARY REVIEW
 REASONS FOR REVIEW, ARGUMENTS, AND AUTHORITIES

I.

THE COURT OF APPEALS ERRED BY APPLYING THE

ARTICLE 36.19/ALMANZA EGREGIOUS HARM STANDARD 

RATHER THAN THE CONSTITUTIONAL ERROR RULE 44.2(a)

HARMLESS BEYOND A REASONABLE DOUBT STANDARD

TO THE TRIAL COURT’S FAILURE TO INFORM THE JURY

OF THE STATE’S ELECTION OF THE SPECIFIC INSTANCE

OF CONDUCT UPON WHICH IT WAS RELYING FOR

CONVICTION AFTER THE DEFENSE REQUESTED THE

ELECTION.

A. The Record Below

Count One of the indictment alleged that, on or about August 1, 2009,

Petitioner, acting with the intent to arouse and gratify his own sexual desire, engaged

in sexual contact by touching the alleged injured party’s female sexual organ.[C.R. 6]

As set forth in the court of appeals’ opinion, at trial, the alleged injured party

testified that Petitioner touched her breasts and crotch “many times” starting when she

was “nine years old.”[3 R.R. 70-73] See Hodges, 2014 WL 7204668, at *2-3. Further,

the alleged injured party’s “outcry statement” described “multiple events” or “multiple

scenarios” of “touching.”[4 R.R. 174] See id. at *1. Finally, Petitioner described both

to the police Detective and during his trial testimony, a single event occurring during

his first weekend visitation with the alleged injured party in August 2009 (when she

would have been 11 years old, just about to turn 12) wherein she placed his hand in

2 HODGES v. STATE

 PETITION FOR DISCRETIONARY REVIEW
her crotch area, but effectively explained that he had no intent to arouse or gratify his

sexual desire during the event. See id. at *4. In short, there was evidence presented

from several different sources indicating that multiple occurrences of the alleged

conduct – i.e., touching the alleged injured party’s female sexual organ – occurred.

The day before jury selection, Petitioner filed a Motion requesting that State be

required to elect “what offenses the State will rely on to convict on each count” of the

Indictment.[C.R. 65-66]

During a discussion outside the presence of the jury just prior to the State

calling its last rebuttal witness to testify, the trial court took up the issue of Petitioner’s

request that the State be required to “elect” and the following exchange occurred:

THE COURT: One other thing that was discussed, and this may be the

appropriate time to bring it up or put it on the record, [Petitioner’s trial

counsel], you had previously asked or inquired about the State making

an election on offenses; is that right?

[Petitioner’S TRIAL COUNSEL]: Yes, Your Honor.

THE COURT: You would still like to do that?

[Petitioner’S TRIAL COUNSEL]: Yes.

THE COURT: It’s my understanding that the State is going to make

some sort of election. I mean, are y’all prepared to do that at this time?

[STATE’S TRIAL COUNSEL]: Yes, Your Honor. The witness testified

that the first fondling offense and the first breast offense occurred in

2009 -- I'm sorry, occurred when she was nine years of age, and it

3 HODGES v. STATE

 PETITION FOR DISCRETIONARY REVIEW
occurred on the couch at her father's house on Olympia Drive. The first

incident she described is the primary offense that we will be pursuing in

each count.

THE COURT: So will that be adequate for the defendant? For purposes

of double jeopardy or whatever, the State is relying upon the first alleged

incident of misconduct when she was nine years old, as I understand it

from the State. Is that correct?

[STATE’S TRIAL COUNSEL]: Yes, Your Honor.

THE COURT: And with that being placed on the record and I understand

the State will be then arguing that to the jury in its argument.

[STATE’S TRIAL COUNSEL]: Yes, Your Honor.

THE COURT: With that being placed on the record, will that be

adequate for the defense?

[Petitioner’S TRIAL COUNSEL]: Yes.

THE COURT: All right.

[4 R.R. 197-98]

This election was never mentioned, in any way, to the jury. There is no

mention of the State’s election in the Court’s written charge to the jury.[C.R. 89-92]

Further, review of the record reveals that the State’s election was never mentioned in

the presence of the jury. Petitioner’s counsel below made no objections to the court’s

charge.[5 R.R. 6]

4 HODGES v. STATE

 PETITION FOR DISCRETIONARY REVIEW
B. The Court of Appeals’ Opinion

In his first point of error below, Petitioner argued that the trial court erred by

failing to limit the jury’s consideration to the particular act designated by the State as

the conduct that would support conviction for the offense alleged in count one of the

Indictment. The State conceded that the trial court erred by failing to instruct the jury

on the State’s election and the court of appeals held that the trial court erred by failing

to do so. See Hodges, 2014 WL 7204668, at *4. The court of appeals then

determined that the proper harm standard is the egregious harm standard set out for

unobjected to jury charge error3

 and, applying that standard, held that the error was

harmless. See id. at *5-6.

C. Analysis

In determining that the egregious harm standard for unobjected to jury charge

error applies to this particular error, the court of appeals relied on this Court’s decision

in Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App. 2011) and their own prior

decision in Reza v. State, 339 S.W.3d 706 (Tex App.–Fort Worth 2011, pet ref’d).

The court of appeals’ decision in Reza is directly in conflict with the decision

of the Fifth Court of Appeals in Duffey v. State. See Duffey v. State, 326 S.W.3d 627,

3

 See, e.g., TEX. CODE CRIM. PROC. ANN. art. 36.19 (Vernon 2006); Almanza

v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).

5 HODGES v. STATE

 PETITION FOR DISCRETIONARY REVIEW
631-32 (Tex. App.–Dallas 2009, no pet.). In Duffey, the court of appeals applied the

reasoning of this Court’s decisions in Phillips v. State, 193 S.W.3d 904 (Tex. Crim.

App. 2006), and Dixon v. State, 201 S.W.3d 731 (Tex. Crim. App. 2006), to hold that

for this exact type of error – failure to in any way instruct the jury on the State’s

election in a child sex case – is subject to Constitutional harm analysis under Rule

44.2(a), Texas Rules of Appellate Procedure, because the error implicates fundamental

Constitutional principles of unanimity and notice. See Duffey, 326 S.W.3d at 631-32.

Duffey has never been expressly overruled or disavowed by this Court. Petitioner

respectfully asserts that the court of appeals erred by evaluating the harm arising from

the trial court’s erroneous failure to instruct the jury on the State’s election under the

egregious harm standard and instead should have reversed the trial court’s judgment

unless it determined beyond a reasonable doubt that the error did not contribute to

Petitioner’s conviction. See Duffey, 326 S.W.3d at 632 (citing TEX. R. APP. P.

44.2(a)).

Further, the facts underlying this Court’s decision in Cosio are distinguishable

from the facts in this case. Cosio was convicted of four separate counts of sexual

assault of/indecency by contact with a minor female. See Cosio, 353 S.W.3d at 769-

70. The evidence presented at trial was such that there were two different incidents

of conduct that could have satisfied the allegations in Count One, two different

6 HODGES v. STATE

 PETITION FOR DISCRETIONARY REVIEW
incidents of conduct that could have satisfied the allegations in Count Two, and three

different incidents of conduct that could have satisfied the allegations in Counts Three

and Four. See id. at 770-71. Cosio’s attorney did NOT request that the State be

required to elect a specific instance of conduct for each specific count. See id. at 776-

77. Therefore, this Court determined that the error was purely a jury charge error for

failing to require jury unanimity – not for failing to implement the State’s election. 

As such, Cosio does not directly address the situation in this case.

Under these circumstances, this Court should grant review in this matter to

settle an important open question of State law resolved by the court of appeals that has

not previously been addressed by this Court: does a trial court’s erroneous failure to

somehow instruct the jury on the State’s election of the specific conduct to support a

conviction amount to a Constitutional error reviewable under Rule 44.2(a) or is it

simply jury charge error reviewable under the article 36.19/Almanza standard? See

TEX. R. APP. P. 66.3(b). Further, this Court should grant review in this matter to

resolve the conflict between the Second Court of Appeals’ decisions in this case and

Reza and the Fifth Court of Appeals’ decision in Duffey. See TEX.R. APP. P. 66.3(a).

PRAYER

WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully prays that

this Court will grant this Petition for Discretionary Review, order a full briefing of the

7 HODGES v. STATE

 PETITION FOR DISCRETIONARY REVIEW
issues presented herein, and after considering the merits, reverse the judgment of the

court of appeals, remand this cause to the trial court for a new trial, and grant such

other and further relief as he may show himself deserving, at law and in equity.

Respectfully submitted,

 /s/ Wm. Reagan Wynn 

WM. REAGAN WYNN

State Bar No. 00797708

KEARNEY | WYNN

One Museum Place

3100 West 7th Street, Suite 420

Fort Worth, Texas 76107

(817) 336-5600

(817) 336-5610 (fax)

rwynn@kearneywynn.com

ATTORNEY FOR PETITIONER

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION

I certify that this Petition was prepared with WordPerfect X5 using Times New

Roman 14 point font, and that, according to that program’s word-count function, the

sections covered by TEX. R. APP. P. 9.4(i)(1) contain 1,466 words.

 /s/ Wm. Reagan Wynn 

WM. REAGAN WYNN

8 HODGES v. STATE

 PETITION FOR DISCRETIONARY REVIEW
CERTIFICATE OF SERVICE

This is to certify that a copy of this Petition has been forwarded to: 

Edward L. Wilkinson

Tarrant County District Attorney’s Office

401 W. Belknap

Fort Worth, Texas 76196-0201

coaapellatealerts@tarrantcounty.com

Lisa C. McMinn

State Prosecuting Attorney

P.O. Box 12405

Austin, Texas 78711

on the 8th day of April, 2015.

 /s/ Wm. Reagan Wynn 

WM. REAGAN WYNN

9 HODGES v. STATE

 PETITION FOR DISCRETIONARY REVIEW
APPENDIX 1
Hodges v. State, Not Reported in S.W.3d (2015)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

2014 WL 7204668

Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR

DESIGNATION AND SIGNING OF OPINIONS.

MEMORANDUM OPINION

DO NOT PUBLISH TEX. R. APP. P. 47.2(B)

Court of Appeals of Texas,

Fort Worth.

Charles Lee Hodges, Appellant

v.

The State of Texas, State

NO. 02–13–00073–CR |

DELIVERED: December 18, 2014 |

Rehearing Overruled February 5, 2015

FROM THE 297TH DISTRICT COURT OF TARRANT

COUNTY TRIAL COURT NO. 1181223D

Attorneys and Law Firms

Wm Reagan Wynn, Kearney Wynn, Fort Worth, TX,

Attorney for Appellant.

Joe Shannon, Jr., Crim. Dist. Atty., Charles Mallin, Asst.

Crim. Dist. Atty., Chief, App. Div., Edward Wilkinson, Lisa

Callaghan, Dawn Ferguson, Asst. Crim. Dist. Attys., Fort

Worth, TX, Attorney for State.

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

MEMORANDUM OPINION 1

1

See Tex.R.App. P. 47.4.

SUE WALKER, JUSTICE

*1 I. Introduction Appellant Charles Lee Hodges appeals his

conviction for indecency with a child. See Tex. Penal Code

Ann. § 21.11(a)(1) (West 2011). In three points, he argues that

the trial court erred by failing to include an instruction in the

jury charge on the State's election and abused its discretion

by admitting inadmissible opinion and hearsay testimony. We

will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

Hodges dated and eventually lived with Sally 2 for several

years beginning in 1994, and Sally became pregnant with

Hodges's child during that time. Hodges and Sally separated

before the child was born. Sally gave birth to Mary in

September 1997; Hodges went to the hospital for the birth but

had no further contact with Mary until she initiated contact

with him 2004, when she was approximately six and a half or

seven years old.

2 To protect the anonymity of the child in this case, we

will use aliases to refer to all individuals named herein

with the exception of the appellant. See Tex.R.App. P.

9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1

(Tex.Crim.App. [Panel Op.] 1982).

Hodges began having supervised visitations with Mary in

2004. He was married to Lana by that time. After several

months, Hodges was awarded standard visitation, with Mary

staying with him and Lana every other weekend.

In 2007, Mary saw photographs of Hodges' wedding and

asked him about “French kissing.” Hodges explained what it

was and demonstrated by kissing her and putting his tongue

in her mouth. Mary later “French kissed” her mother and

said that Hodges had shown her how to kiss. Sally reported

the incident to Child Protective Services (CPS), and after an

investigation, CPS “ruled out” sexual abuse.

In 2009, when Mary was nine years old, Sally began to notice

that Mary was clingy when she came home from weekends

at Hodges's house. Mary often called Sally from her bedroom

in Hodges's house and asked Sally to stay on the line in case

Mary needed her. That year, Mary attended a church youth

retreat at Great Wolf Lodge. At the retreat, Mary confided to

her small group leader, Ann, that she was confused about her

sexuality and said that it was because of her dad. Mary told

Ann that Hodges had shown her “inappropriate places” on her

body, had touched her there, and had expected her to do the

same. Mary also said that Hodges “had French-kissed her on

the cheek at Six Flags and expected her to do the same thing

back.” Ann took Mary to find the children's pastor from the

church, Jessie, who was also at the retreat. Mary told Jessie

that she thought she was a lesbian because she did not like it

when boys touched her. When Jessie asked which boys had

touched her, Mary said, “not boys ... my dad.” Jessie then

consulted with another adult leader at the retreat, Mark. While

talking to Jessie and Mark, Mary said that Hodges “had kissed
Hodges v. State, Not Reported in S.W.3d (2015)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

her with his tongue, that he had touched her down there, which

she motioned with her hands to [be] her private parts, and that

he helped her with her bra.” Mary also said that Hodges had

kissed her “mouth to mouth” and that his tongue had touched

her tongue. Mary said that anything that happened between

her and Hodges occurred “over a year ago.” Mark and Jessie

contacted Sally and CPS.

*2 Sally went to Great Wolf Lodge and found her daughter

crying and “extremely upset.” Mark and Jessie told Sally what

Mary had told them. Mary kept apologizing to her mother and

said that she could not remain silent any longer but did not

want to hurt her dad.

Hodges called Sally after the retreat to say he was coming

to visit Mary, but Sally refused. After Hodges got angry,

Sally told him “that there was an investigation going on” and

gave him the phone number for the investigating detective.

Sally did not tell Hodges what the investigation was about.

Hodges called Detective Aaron Martinez, and the detective

recorded the conversation. Although the detective had not

yet told Hodges the subject of the investigation, Hodges

made comments that made the detective realize that Hodges

“automatically assum[ed]” that the investigation involved

“something sexual” with Mary. Hodges told the detective that

Mary had been acting out sexually. He said that Mary ran

around naked at her mother's house and tried to do the same

at his house. Hodges also told the detective about an incident

when Mary “put [his] hand on her crotch” while the two were

sitting next to each other watching TV. Hodges said that he

immediately pulled his hand back and told Mary that he was

not comfortable with that behavior. Hodges told the detective

that he was going to stop contact with Mary “out of selfpreservation” because her conduct scared him.

Hodges was ultimately charged with one count of indecency

with a child by touching Mary's female sexual organ and

with one count of indecency with a child by touching Mary's

breast.

At trial, Mary testified that the first incident with Hodges

that made her “uncomfortable” occured when she asked him

how people “kissed at weddings” when she was nine years

old. Hodges demonstrated by putting his tongue in her mouth.

Mary testified that Hodges “French kissed” her “almost every

other weekend.” He kissed her in public once while at Six

Flags; they were in line for a snack, he was holding her in

his arms, and he kissed her cheek with his tongue. Another

time, Hodges lay on top of her in his bedroom, “tongue kiss

[ed]” her ear, and told her to do the same to him. When Mary

told him that she did not know how to do that, he “seemed a

little mad,” which made Mary feel bad. Sometimes Hodges

would be in Mary's room when she got out of the shower and

would watch her get dressed. Hodges would get mad if she

ever locked her bedroom door. 3

3 At trial, Lana testified that the doorknob to Mary's

bedroom did not have a lock on it, and a photograph of

the door was introduced into evidence.

Mary said that Hodges gave her the “birds and the bees talk”

when she was nine. Hodges explained sexual intercourse and

masturbation to her. Hodges touched himself to demonstrate

masturbation, or as he called it, “pleasurization.” He told

Mary that all guys will want her body, and he moved his hands

“[o]ver [her] curves.”

Regarding the evidence to support count one of the

indictment, which alleged that Hodges committed indecency

with a child by touching Mary's female sexual organ, Mary

testified,

Q. Now, were there times that [Hodges] touched you on

your body parts in a way that made you feel uncomfortable?

A. Yes, ma'am.

*3 Q. And can you tell us where you were when this

would happen?

A. In the living room at his house.

Q. So do you mean in the living room of [his] house ... ?

A. Yes, ma'am.

Q. And where would you be in the living room?

A. We would be sitting on the couch and we would be on

the left side of the couch.

Q. Did he sit there a lot?

A. Yes, ma'am.

Q. And what would you be doing?

A. I would be watching TV.

Q. So would he be watching TV as well?

A. Yes, ma'am.
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Q. So the two of you are on the couch watching TV, and

what would he do?

A. He would put his arm around me down my breast and

down to my private.

Q. When you say your private, are you referring to your

genitals or female sexual organ?

A. Yes, ma'am.

Q. Because you're 15 now and you know what that is.

A. Yes, ma'am.

Q. And you said he would put his hand down so that it

touched your breast and then touched your genitals?

A. Yes, ma'am.

Mary explained that this happened “[m]any” times, beginning

when she was nine years old. She said that she would be

wearing either a big T-shirt and underwear or jeans and a Tshirt and that Hodges would rub his hand on her female sexual

organ on top of her clothing. She testified that she would try

to avoid being near Hodges by sitting on the other side of the

couch but that Hodges would act upset or mad so she would

go over to where he was sitting. Mary remembered that on

three occasions while sitting on the couch, Hodges asked her

to touch his “male parts” and took her hand and placed it on

his “male genital parts” over his clothing. When Mary moved

her hand, he placed it back and told her it was okay to touch

him there.

Mary said that she remembered telling Hodges “no” once

when he kissed her neck down to her fingertips and him

responding by “saying something along the lines of this is

what daddies and daughters do.” Hodges also told Mary that

if she ever told anyone, he would not want to see her again.

On cross-examination, Mary agreed that she had told her

counselor that she “had used this alleged sex abuse for

bragging rights to get sympathy,” as an excuse for bad

behavior, and to get attention. She also agreed that Hodges

used to get upset with her when she walked around the house

without clothes on. Mary agreed that her father gave her the

“birds and the bees” talk because she was “infatuated” with

a boy across the street. Mary also said on cross-examination

that she has a thyroid disease that can cause depression and

can affect her emotional feelings.

Detective Martinez also testified at trial, and the recorded

conversation between him and Hodges was admitted into

evidence. Detective Martinez testified that sex offenders

commonly blame their actions on the child victim.

Hodges testified at trial that he talked to Mary about sexuality

when she was nine because she was infatuated with a boy

across the street and Hodges was worried that she “might

try something sexual with him.” Hodges said he read about

how to talk to children about sex on the Planned Parenthood

website. He told Mary that “masturbation is a perfectly

normal thing that you do by yourself in private,” but he did

not describe or demonstrate the act of masturbation. Hodges

denied ever showing Mary how to French kiss or kissing her

cheek or tongue with his tongue.

*4 Hodges testified regarding the incident in 2007 that

resulted in the CPS investigation. He and Mary were

wrestling on the couch, Mary was on top of him, they grabbed

each other's hands and legs so “there was nothing left but our

mouths,” and they started biting each other. Mary “stuck her

tongue down in [his] mouth,” and Hodges “jerked back and

said no.” He later discovered that Mary had also French kissed

Sally.

Hodges testified that during Mary's first August weekend

visitation in 2009, he and Mary were watching television on

the couch when Mary “took [his] hand and put it down in her

crotch area.” Hodges testified that he “jerked [his] hand back

and said no.” He said that he was in shock and later told his

mother about the incident, although he did not tell Sally. After

that incident, he would not allow Mary to sit next to him or

kiss him. He also told Mary that he could not be around her

if she did “that kind of stuff” again.

Hodges also presented evidence that thyroid problems

can cause depression and that depression can lead to

hallucinations and delusions that can be sexual in nature.

During the State's case on rebuttal, the trial court required the

State to elect what incidents of criminal conduct it relied on

for each count of the indictment per Hodges's request for an

election. The State elected “the first fondling offense” that

occurred on Hodges's couch in 2009, as testified to by Mary.

The jury was never informed of the State's election by the trial

court or by the parties. And the jury charge did not inform the

jury of the State's election. Hodges did not object to the lack

of a specific unanimity instruction in the jury charge.
Hodges v. State, Not Reported in S.W.3d (2015)

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The jury convicted Hodges of count one of the indictment,

which alleged that on or about August 1, 2009, Hodges

“intentionally, with the intent to arouse or gratify [his] sexual

desire ..., engage[d] in sexual contact by touching the female

sexual organ of [Mary], a child younger than 17 years and

not the spouse of [Hodges].” The jury found him not guilty

of the second count, which alleged that on or about August

1, 2009, Hodges “intentionally, with the intent to arouse or

gratify [his] sexual desire ..., engage[d] in sexual contact by

touching the breast of [Mary], a child younger than 17 years

and not the spouse of [Hodges].” The trial court sentenced

Hodges to eight years' confinement for count one.

III. ELECTION INSTRUCTION

In his first point, Hodges argues that the trial court erred by

failing to instruct the jury of the State's election. 4 The State

concedes error but argues that Hodges was not egregiously

harmed by the trial court's error.

4 Because the jury acquitted Hodges of count two of

the indictment, alleging indecency by touching Mary's

breast, this issue relates only to count one, alleging

indecency by touching Mary's female sexual organ.

When an indictment alleges one sexual assault, but more than

one assault is shown by the evidence at trial, the State is

required, upon timely request by the defense, to elect as to

the specific incident of sexual assault that the State will use

to convict. See Phillips v. State, 193 S.W.3d 904, 909–10

(Tex.Crim.App.2006); O'Neal v. State, 746 S.W.2d 769, 772

(Tex.Crim.App.1988). Following the State's election of the

act on which it will proceed for conviction, the defendant

is entitled to an instruction charging the jury to consider

only the elected act in deciding guilt and limiting the jury's

consideration of all other unelected acts to the purposes

for which they were admitted. Duffey v. State, 326 S.W.3d

627, 630 (Tex.App.—Dallas 2009, no pet.), disagreed with

on other grounds by Reza v. State, 339 S.W.3d 706 (Tex.

App—Fort Worth 2011, pet. ref'd); see Cosio v. State, 353

S.W.3d 766, 776 (Tex.Crim.App.2011). No such instruction

was included in the jury charge in this case, and because

Hodges did not object to the lack of a proper unanimity

instruction, we must evaluate the error for egregious harm.

See Cosio, 353 S.W.3d at 776–77 (holding that appellant

forfeited any constitution-based jury charge claim by not

objecting that charge allowed for non-unanimous verdict);

Reza, 339 S.W.3d at 714.

*5 An egregious harm determination must be based on a

finding of actual rather than theoretical harm. Cosio, 353

S.W.3d at 777. In conducting our harm analysis, we must

decide whether the error was so egregious and created such

harm that Hodges was deprived of a fair and impartial trial

—in short, that “egregious harm” has occurred. See Celis

v. State, 416 S.W.3d 419, 423 n.3 (Tex.Crim.App.2013);

Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985)

(op. on reh'g); see Tex.Code Crim. Proc. Ann. art. 36.19

(West 2006). When assessing harm based on the particular

facts of the case, the reviewing court should consider the

charge, the state of the evidence, including the contested

issues and the weight of the probative evidence, the parties'

arguments, and all other relevant information in the record.

See Cosio, 353 S.W.3d at 777.

Because the harm in this case stems from the trial court's

failure to inform the jury of the State's election, we will also

analyze any potential harm in light of the four purposes of the

election requirement: (1) the appellant's need to be protected

from the admission of extraneous offenses; (2) the risk that

the jury found the appellant guilty of the charged offense not

because it was proven beyond a reasonable doubt but because

of the admission of the extraneous offenses; (3) the risk of a

nonunanimous verdict; and (4) whether the admission of the

extraneous offenses deprived the appellant of adequate notice

regarding which offense to defend against. Reza, 339 S.W.3d

at 713, 715; see also Dixon v. State, 201 S.W.3d 731, 734–

36 (Tex.Crim.App.2006).

Here, the jury charge required only that the jurors

“unanimously agree[ ] upon a verdict,” without requiring

unanimity based on the evidence presented in the case. Thus,

the charge permitted a non-unanimous verdict. See Cosio, 353

S.W.3d at 777. Neither party mentioned the State's election

during closing arguments, but neither party “added to the

charge error[ ] by telling the jury that it did not have to be

unanimous about the specific instance of criminal conduct.”

Id.

Regarding the state of the evidence, Mary described how,

beginning when she was nine years old, Hodges would put

his arm around her while they watched TV on his couch and

would touch her breast and her “private.” Hodges testified

and admitted to touching Mary's sexual organ, explaining that

Mary was the one who grabbed his hand and placed it there.

The jury heard Hodges's recorded telephone conversation

with Detective Martinez, in which Hodges said that Mary had
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grabbed his hand and placed it on her sexual organ. Detective

Martinez testified that sex offenders commonly blame their

actions on their child victims.

We will also consider the four purposes of the election rule in

our harm analysis. See Reza, 339 S.W.3d at 715. Regarding

the first purpose—Hodges's need to be protected from the

admission of extraneous offenses—the lack of a specific

unanimity instruction in the jury charge was harmless in

regard to this purpose because evidence of other extraneous

sexual acts between him and Mary were admissible to show

their relationship and states of mind under article 38.37. See

Tex.Code Crim. Proc. Ann. art. 38.37, § 2 (West Supp.2014);

see Dixon, 201 S.W.3d at 734; Phillips, 193 S.W.3d at 909–

10; Reza, 339 S.W.3d at 715.

The risk that the jury found Hodges guilty of indecency

by touching Mary's sexual organ based on the admission of

extraneous offenses, rather than proof of the charged offense

beyond a reasonable doubt—the second purpose of the

election requirement—was low in this case. Mary herself was

the one who recounted the multiple acts of indecency here,

and she testified generally that Hodges fondled her “many

times” on his couch while they were watching television, with

the first occurring when she was nine years old. The jury was

not persuaded by Hodges's explanation that Mary initiated the

touching. As the court of criminal appeals explained in Dixon,

*6 This case is not concerned

with evidence of different activities

from different sources that a jury

might perceive to “add up” to the

defendant being guilty even though

no individual offense was proven

beyond a reasonable doubt. Moreover,

the child complainant did not testify

about a number of varied incidents

with differing details that might have

incrementally added to the idea that the

defendant must have done something

to provoke the plethora of stories about

his activities.

201 S.W.3d at 735. And as we have stated before, “in cases

involving ‘complainant testimony of a continuing course of

the same type of nonspecific, indistinguishable conduct over

a long time period, the issue is typically whether the jury

believes the complainant generally or not at all.’ ” Reza, 339

S.W.3d at 715 (quoting Smith v. State, Nos. 02–08–00394–

CR, 02–08–00395–CR, 2010 WL 3377797, at *13 (Tex. App

— Fort Worth Aug. 27, 2010, no pet.) (not designated for

publication). In other words, here, if the jury found Mary's

testimony about the offenses of indecency by touching her

female sexual organ on several occasions was credible as

to one of those occasions, then the jury likewise must have

believed that her testimony was credible as to all of them. 5

See Dixon, 201 S.W.3d at 735; Reza, 339 S.W.3d at 716.

5 And although the jury was not convinced beyond a

reasonable doubt that Hodges committed indecency by

touching Mary's breast, a review of the record reveals

that the testimony focused on touching Mary's sexual

organ, not her breast. Mary testified generally that

Hodges “would put his arm around me down my breast

and down to my private.”

Similarly, regarding the risk of a nonunanimous verdict,

Mary's testimony regarding Hodges touching her female

sexual organ was general in nature; she testified that it

happened on his couch while watching TV and differentiated

between incidents only by what she was wearing on different

occasions—a big T-shirt and underwear or a T-shirt and

jeans. We perceive little to no risk that any juror would have

believed that Mary's testimony as to the incidents of Hodges

touching her sexual organ was credible as to one incident but

not as to another. See Dixon, 201 S.W.3d at 735; Reza, 339

S.W.3d at 716–17.

Regarding the final purpose of the election requirement—

to provide the defendant with adequate notice about which

offense to defend against—when the State made its election

at trial, the trial court asked defense counsel if the election

was “adequate,” and defense counsel agreed. Hodges has not

indicated that he was adversely affected by not receiving

notice of the State's election earlier in the trial. The notice

purpose of the election requirement does not weigh in favor

of a finding of egregious harm. See Duffey, 326 S.W.3d at 634

(holding due process concerns not implicated when defendant

received timely notice of State's election upon request and

when counsel expressly acknowledged understanding the

election and did not indicate that the defense was adversely

affected).

Having considered the harm to Hodges in light of the charge,

the state of the evidence, the parties' arguments, and the

purposes of the election rule, we hold that the trial court's error

in failing to instruct the jury regarding the State's election

was not so egregious and did not create such harm as to deny

Hodges a fair and impartial trial. See Almanza, 686 S.W.2d at

171; see also Cosio, 353 S.W.3d at 777; Dixon, 201 S.W.3d
Hodges v. State, Not Reported in S.W.3d (2015)

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at 734–36; Phillips, 193 S.W.3d at 913–14; Reza, 339 S.W.3d

at 717. We overrule Hodges's first point.

IV. ADMISSIBILITY OF OPINION TESTIMONY

*7 In his second point, Hodges argues that the trial court

abused its discretion by allowing the State to present, in its

case on rebuttal, opinion evidence concerning Mary's good

character for truthfulness when her character for truthfulness

had not been attacked. Hodges's complaint concerns the

following testimony of Jessie, one of the adult leaders at the

church retreat:

Q. What is your opinion of [Mary]'s character for

truthfulness?

[DEFENSE COUNSEL]: Objection, Your Honor. That's

not—that's not relevant, or she's not capable or competent

to answer that question. Not a proper question.

THE COURT: I think there may be a preliminary question

in front of that. You may rephrase at this point if you would

like to.

Q. (BY [THE STATE] ) In your experiences with [Mary],

have you formed an opinion as to her character for

truthfulness?

A. Yes.

Q. And is it good or bad?

A. I would say she's been truthful with me.

[DEFENSE COUNSEL]: Objection. That's nonresponsive,

Your Honor.

THE COURT: Just listen carefully. Just respond to the

question.

THE WITNESS: Sorry.

Q. (BY [THE STATE] ) So it's a good one?

A. Yes.

To preserve a complaint for our review, a party must have

presented to the trial court a timely request, objection, or

motion that states the specific grounds for the desired ruling

if they are not apparent from the context of the request,

objection, or motion. Tex.R.App. P. 33.1(a)(1); Landers v.

State, 402 S.W.3d 252, 254 (Tex.Crim.App.2013); Sample

v. State, 405 S.W.3d 295, 300 (Tex.App.—Fort Worth 2013,

pet. ref'd). Further, the trial court must have ruled on the

request, objection, or motion, either expressly or implicitly, or

the complaining party must have objected to the trial court's

refusal to rule. Tex.R.App. P. 33.1(a)(2); Pena v. State, 353

S.W.3d 797, 807 (Tex.Crim.App.2011). A reviewing court

should not address the merits of an issue that has not been

preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473

(Tex.Crim.App.2010) (op. on reh'g); Sample, 405 S.W.3d at

300.

Here, defense counsel objected to relevancy, “capab[ility] or

competen[cy] to answer the question,” and nonresponsive,

and he obtained a ruling on only his nonresponsive objection.

Defense counsel did not preserve his rule 608 argument for

appeal. See Tex.R.App. P. 33.1(a)(1); Landers, 402 S.W.3d

at 254; Sample, 405 S.W.3d at 300; see also Tex.R. Evid.

608(a) (setting forth requirements for admission of character

evidence). We overrule Hodges's second point.

V. ADMISSIBILITY OF HEARSAY TESTIMONY

In his third point, Hodges argues that the trial court abused

its discretion by admitting Sally's testimony about certain

statements made by Mary in violation of the hearsay rule.

Specifically, he complains of Sally's testimony that she once

saw Mary “tugging her shirt down to show her cleavage and

part of her breasts because that's what Daddy said he liked.”

After the trial court overruled defense counsel's hearsay and

nonresponsive objections, Sally explained that Mary had said

she showed her cleavage

because that's what Daddy liked and

that made Daddy happy and turned

Daddy on, because he pointed out

somebody at Golden Corral that had

on a low-cut shirt and was showing off

her breasts, and that [Mary] wanted to

make Daddy happy and please Daddy.

And that's what made Daddy happy

and pleased him.

“ ‘Hearsay’ is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” Tex.R.

Evid. 801(d). The “hearsay rule” excludes the admission of

hearsay evidence, but the rules of evidence also provide that
Hodges v. State, Not Reported in S.W.3d (2015)

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many types of hearsay evidence are not excluded by the

hearsay rule. See Tex.R. Evid. 802, 803, 804.

*8 In this case, we need not decide whether the complainedof statements constitute inadmissible hearsay because, even

assuming that they were, any error in their admission

was harmless. Error in the admission of hearsay evidence

is subject to harmless error analysis under rule 44.2(b).

Tex.R.App. P. 44.2(b); see Mosley v. State, 983 S.W.2d

249, 259 (Tex.Crim.App.1998) (op. on reh'g), cert. denied,

526 U.S. 1070 (1999); Moon v. State, 44 S.W.3d 589, 594

(Tex.App.—Fort Worth 2001, pet. ref'd). A substantial right

is affected when the error had a substantial and injurious

effect or influence in determining the jury's verdict. King

v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (citing

Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct.

1239, 1253 (1946)). Conversely, an error does not affect a

substantial right if we have “fair assurance that the error did

not influence the jury, or had but a slight effect.” Solomon v.

State, 49 S.W.3d 356, 365 (Tex.Crim.App.2001); Johnson v.

State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998).

In making this determination, we review the record as a

whole, including any testimony or physical evidence admitted

for the jury's consideration, the nature of the evidence

supporting the verdict, and the character of the alleged

error and how it might be considered in connection with

other evidence in the case. Motilla v. State, 78 S.W.3d 352,

355 (Tex.Crim.App.2002). We may also consider the jury

instructions, the State's theory and any defensive theories,

whether the State emphasized the error, closing arguments,

and even voir dire, if applicable. Id. at 355–56.

Here, we have detailed the evidence presented at trial,

including Mary's testimony about how Hodges fondled

her on many occasions, French kissed her, demonstrated

masturbation to her, and watched her change clothes.

Hodges vigorously cross-examined Mary and Sally about the

allegations and presented evidence in an attempt to contradict

Mary's testimony, such as evidence that her door did not have

a lock and that her shower had an opaque shower curtain.

The jury heard Hodges's testimony denying or explaining

the allegations against him, including his explanation of

the Golden Corral incident. Hodges said that Mary had

asked what “sexy” meant and he had pointed out a woman

at Golden Corral who was wearing a low-cut blouse and

said that the woman was “trying to be sexy.” The State

did not mention the Golden Corral incident during closing

argument, instead emphasizing Mary's testimony, Hodges's

incriminating statements to the detective, and Hodges's

explanation of the August 1, 2009 incident. We conclude that,

in the context of the entire case against Hodges, any error in

the admission of Sally's testimony set forth above did not have

a substantial or injurious effect on the jury's verdict and did

not affect Hodges's substantial rights. See King, 953 S.W.2d

at 271. Thus, we disregard the alleged error. See Tex.R.App.

P. 44.2(b). We overrule Hodges's third point.

VI. CONCLUSION

Having overruled Hodges's three points, we affirm the trial

court's judgment.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
APPENDIX 2
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00073-CR

CHARLES LEE HODGES APPELLANT

 

 V.

THE STATE OF TEXAS STATE

------------

FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 1181223D

------------

ORDER

------------

We have considered “Appellant’s Motion For Rehearing.”

It is the opinion of the court that the motion for rehearing should be and is

hereby denied and that the opinion and judgment of December 18, 2014, stand

unchanged.

The clerk of this court is directed to transmit a copy of this order to the

attorneys of record.n

FILE COPY
SIGNED February 5, 2015.

/s/ Sue Walker

SUE WALKER

JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

2

FILE COPY
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The petition for discretionary review does not contain the identity of Judge,

Parties and Counsel in compliance with [Rule 68.4(a)]; it is missing the identity of

the trial court judge. You have ten days to tender a corrected petition for

discretionary review.

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