NO. 07-10-00097-CR 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL B 

FEBRUARY 9, 2012 

DARWIN N. WHITE, APPELLANT 

v. 

THE STATE OF TEXAS, APPELLEE 

 FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY; 

NO. 2008-421,377; HONORABLE BRADLEY S. UNDERWOOD, JUDGE 

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. 

MEMORANDUM OPINION 

 Appellant Darwin N. White appeals from his jury conviction of the offense of 

indecency with a child and the resulting sentence of twenty years of imprisonment. 

Through two issues, he contends the trial court erred, requiring reversal. We disagree 

and will affirm the judgment of the trial court. 

Background 

 Appellant was charged in October 2008 by an indictment alleging that on a day 

the previous January, he “did then and there intentionally and knowingly, with the intent 

to arouse and gratify the sexual desire of any person, engage in sexual contact by 
2 

touching the genitals of [the victim], a child younger than 17 years and not the spouse of 

the defendant.”1

 The indictment came about after the child, a boy then seven years old, 

told his mother appellant had touched him. The mother called police. 

 Evidence showed that appellant had a room in the residence of a friend of the 

child’s mother. The child, nine years old by the time of trial, testified that he and his 

sister sometimes stayed overnight with his mother’s friend, whom he called “grandma.” 

The child testified “Red,” as he called appellant, also lived in the house. When the child 

stayed there, he sometimes stayed in the same room as Red. The child testified “Red 

touched me on the private” one night. He explained Red used his hand to rub lotion on 

his “private” under his underwear. 

 A nurse testified she found no evidence of trauma to the child when she 

examined him. She also testified the child pointed to male genitalia on a diagram, and 

referred to his genitalia as his “privacy.” She stated the child told her Red touched him 

on his privacy while his clothes were off. 

 A letter appellant wrote the woman referred to as “grandma” was introduced at 

trial. It contains the statement, “It breaks my heart to tell you this, I am guilty of touching 

[the child] wrong.” The letter further expresses appellant’s remorse. 

 The jury found appellant guilty of indecency with a child and the court imposed 

the sentence noted. This appeal followed. 

 1 See Tex. Penal Code Ann. §21.11(a)(1) (West 2011). This is a second degree 

felony punishable by imprisonment for any term of not more than 20 years or less than 2 

years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.33 (West 2011). 
3 

Analysis 

Jury Instruction 

By his first issue, appellant asserts the trial court erred in submitting to the jury a 

charge that, like the indictment, included the mental states of “intentionally” and 

“knowingly,” when only “intent to arouse or gratify sexual desire” is required. No 

objection to the charge was raised at trial but appellant maintains the error was harmful 

under the standard set forth in Almanza v. State, 686 S.W.2d 157, 171-72 

(Tex.Crim.App. 1985). 

The abstract portion of the charge contains the statutory definitions, in part, of the 

terms “intentionally” and “knowingly.” See Tex. Penal Code Ann. § 6.03(a), (b) (West 

2010) (defining terms).2

 

The application paragraph then tracked the language of the indictment, telling the 

jury: 

Now bearing in mind the foregoing instructions, if you find from the 

evidence beyond a reasonable doubt that on or about January 28, 2008, 

in Lubbock County, Texas, as alleged in the indictment, the defendant 

DARWIN WHITE, did then and there intentionally or knowingly with the 

intent to arouse or gratify the sexual desire of any person, engage in 

sexual contact by touching the genitals of the said [child], a child younger 

than seventeen (17) years and not the spouse of said defendant, then you 

will find the defendant guilty of the offense of indecency with a child, and 

so say by your verdict. 

 2

 And, although it is not part of appellant’s complaint, the two definitions included 

are inconsistent. The charge described an intentional state with respect to the nature of 

conduct, but limited its description of the knowing state to that applying to a result of 

conduct. Tex. Penal Code Ann. § 6.03(a) (West 2010); see Caballero v. State, 927 

S.W.2d 128, 131 (Tex.App.—El Paso 1996, pet. ref’d) (addressing similar 

circumstance). 
4 

Applicable Law 

Appellate review of claimed error in a jury charge involves a two-step process. 

Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App. 1994); see Sakil v. State, 287 

S.W.3d 23, 25-26 (Tex.Crim.App. 2009). We must first determine whether error 

occurred. See Abdnor, 871 S.W.2d at 731-32. If it did, we must then evaluate whether 

sufficient harm resulted from the error to require reversal. Id. 

If there is error in the court's charge but the appellant did not preserve it at trial, 

as here, we must decide whether the error was so egregious and created such harm 

that the appellant did not have a fair and impartial trial--in short, that "egregious harm" 

has occurred. Almanza, 686 S.W.2d at 171; see Tex. Code Crim. Proc. Ann. art. 36.19 

(West 2006); Allen v. State, 253 S.W.3d 260, 264 (Tex.Crim.App. 2008); Hutch v. State, 

922 S.W.2d 166, 171 (Tex.Crim.App. 1996). Egregious harm is the type and level of 

harm that affects the very basis of the case, deprives the defendant of a valuable right, 

or vitally affects a defensive theory. Allen, 253 S.W.3d at 264 & n.15; Olivas v. State, 

202 S.W.3d 137, 144, 149 (Tex.Crim.App. 2006); Almanza, 686 S.W.2d at 172. 

In making an egregious harm determination, "the actual degree of harm must be 

assayed in light of the entire jury charge, the state of the evidence, including the 

contested issues and weight of probative evidence, the argument of counsel and any 

other relevant information revealed by the record of the trial as a whole." Almanza, 686 

S.W.2d at 171; see generally Hutch, 922 S.W.2d at 172-74. The purpose of this review 

is to illuminate the actual, not just theoretical, harm to the accused. Almanza, 686 

S.W.2d at 174. Egregious harm is a difficult standard to prove and must be determined 
5 

on a case-by-case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App. 2002); 

Hutch, 922 S.W.2d at 171. 

Regarding indecency with a child by contact, the Penal Code provides, "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 . . . engages in sexual contact with the child or 

causes the child to engage in sexual contact.” Tex. Penal Code Ann. § 21.11(a)(1) 

(West 2011). The offense requires the specific intent to arouse or gratify the sexual 

desire of any person. Tex. Penal Code Ann. § 21.11(a)(2) (West 2011). That specific 

intent can be inferred from the defendant's conduct, his remarks, and all surrounding 

circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Crim App. 1981); 

Couchman v. State, 3 S.W.3d 155, 163 (Tex.App.--Fort Worth 1999, pet. ref'd). The 

jury is the exclusive judge of the credibility of witnesses and of the weight to be given 

their testimony; reconciliation of conflicts in the evidence is within the jury's exclusive 

province, and it may choose to believe some testimony and disbelieve other testimony. 

See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Margraves v. State, 34 S.W.3d 

912, 919 (Tex.Crim.App. 2000). 

Application 

 As noted, reversal is proper here only if we find the error caused egregious harm. 

Almanza, 686 S.W.2d at 171-72; Bazanes v. State, 310 S.W.3d 32, 36 (Tex.App.—Fort 

Worth 2010, pet. ref’d). Looking at the charge as a whole, we note it begins, in its 

paragraphs 1 and 2, with accurate statements of the substantive requirements for 

conviction of indecency with a child, including an accurate recitation of the definition of 
6 

“sexual contact.”3 That presentation of the elements of the offense makes no mention 

of culpable mental states other than the required specific intent to arouse or gratify. The 

jury was thus correctly instructed of the elements of the offense. 

Next, however, as noted, the charge included the definitions of intentional and 

knowing. As noted also, the application paragraph required the jury, to convict, to find 

appellant did “intentionally or knowingly with the intent to arouse or gratify the sexual 

desire of any person, engage in sexual contact . . . .” The placement of the phrase 

“intentionally or knowingly” in the application paragraph in this case differs from that in 

Chiodo v. State, No. 02-06-00096-CR, 2007 Tex. App. LEXIS 5261 (Tex.App.--Fort 

Worth July 5, 2007, pet. ref'd) (mem. op., not designated for publication), where the 

paragraph’s comparable language stated “with the intent to arouse or gratify the sexual 

desire . . . intentionally or knowingly engage in sexual contact . . . ”. In Chiodo, the court 

noted it was because the application paragraph “disjunctively listed” the culpable mental 

states of intentionally and knowingly with the required specific intent to arouse or gratify 

that the jury could have found the defendant guilty without finding he had the specific 

intent to arouse or gratify. In our present case, the culpable mental states are included 

in a less “disjunctive” fashion, carrying less risk the jury would believe any one of the 

culpable mental states permitted conviction. 

 Appellant argues on appeal the evidence was insufficient to support conviction, 

but his sufficiency argument is not that the evidence of his intent was lacking. His 

 3 See Tex. Penal Code Ann. § 21.11(c) (West 2011) (defining sexual contact). 
7 

sufficiency argument, the subject of his second issue on appeal, is that the evidence did 

not show beyond a reasonable doubt that he touched the child’s genitals. 

 Recall the child testified appellant rubbed lotion on his “private.” There was 

evidence that the child had eczema, and appellant acknowledged in his written 

statement to police that there were occasions on which he rubbed lotion on the boy. His 

statement says he “would only rub it on his stomach and back.” He denied ever putting 

lotion on the child’s penis, or otherwise touching his penis, “on purpose or by accident.” 

 Appellant did not testify at trial. In the letter to his long-time friend, appellant 

wrote, “I lied to you & to all those who trusted me. I am so ashamed.” Despite the 

testimony regarding lotion, no evidence suggested to the jury that there might have 

been touching in prohibited areas of the boy’s body but it was accidental or for a 

legitimate purpose like treatment for eczema. In short, no evidence was presented to 

suggest appellant engaged in the conduct prohibited by Section 21.11(a)(1) but acted 

without the requisite intent. 

Nor did appellant make such an argument to the jury. His position before the jury 

was that no prohibited touching occurred and the child had been coached by his mother 

to make the accusation for her own reasons. Appellant argued to the jury that the 

damaging statements in his letter were not confessional but were simply the anguished 

reaction of a 65-year-old man to the accusation made against him. Appellant also 
8 

argued to the jury that the boy had not made sufficiently clear in his testimony whether 

he was saying appellant touched his genitals or touched him around his anus.4

 

 As she walked the jury through portions of the charge early in her closing 

argument, the prosecutor noted the presence of the definitions of intentionally and 

knowingly, but did not make further comment on them.5 The State’s jury argument on 

intent focused on the intent to arouse or gratify sexual desire. Urging the jury to use its 

“reason and common sense,” the State urged the jury to infer that intent from the nature 

of the contact.6 The prosecutor further reminded the jury of the child’s testimony the 

touching occurred at night when the lights were off. The State also argued appellant’s 

statements in the letter were an acknowledgement of the guilty intent that accompanied 

his touching of the boy. 

 Considering, as we must, the entire jury charge, the state of the evidence, the 

disputed issues and the weight of the evidence, and the argument of counsel, we find 

the unobjected-to error of the inclusion of the culpable mental states of intentionally and 

knowingly in the charge did not affect the very basis of the case, deprive appellant of a 

valuable right, or vitally affect a defensive theory. Allen, 253 S.W.3d at 264 & n.15. 

 4

 That argument focused on the boy’s response, “To go potty,” which he gave to 

the prosecutor’s question, “What do you use your privates for?” 

5

 Later, at the very end of the State’s rebuttal argument on closing, arguing 

appellant’s letter demonstrated his guilt, the prosecutor made the statements, “He did it 

intentionally. He knows what he did. The letter shows it.” 

6

 The prosecutor argued, “How do you know what his intent was to touch [the 

boy’s] penis with the lotion? Why does a 60 plus year old man touch a seven-year-old’s 

penis? Unless he gets a benefit from it. Unless he does it to arouse himself.” 
9 

Accordingly, we find the charge error was not so egregious that it denied appellant a fair 

and impartial trial. See Bazanes, 310 S.W.3d at 36; Chiodo, 2007 Tex.App. LEXIS 

5261, at *15. We overrule appellant’s first issue. 

Sufficiency of the Evidence 

In appellant’s second issue, he contends the evidence was insufficient to prove 

he touched the child’s genitals as alleged. He points to the child’s references to his 

“privates” and “privacy,” and the statement mentioned previously in which the child 

explained he used his privates “to go potty.” Appellant argues that statement shows the 

child might have meant his “private” referred to his anal area. 

We evaluate the sufficiency of evidence supporting criminal convictions under the 

standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 

560 (1979); Brooks v. State, 323 S.W.3d 893, 894-95 (Tex.Crim.App. 2010) (plurality 

opinion). That standard requires that we view all evidence in the light most favorable to 

the verdict and determine whether any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt. Salinas v. State, 163 

S.W.3d 734, 737 (Tex.Crim.App. 2005). The standard gives full play to the 

responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the 

evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 

443 U.S. at 319, 99 S. Ct. at 2789. 

The sufficiency of the evidence is measured by the elements of the offense as 

defined by the hypothetically correct jury charge for the case, not the charge actually 

given. Hardy v. State, 281 S.W.3d 414, 421 (Tex.Crim.App. 2009); Malik v. State, 953 
10 

S.W.2d 234, 240 (Tex.Crim.App. 1997). Such a charge is one that accurately sets out 

the law, is authorized by the indictment, does not unnecessarily restrict the State's 

theories of liability, and adequately describes the particular offense for which the 

defendant was tried. Gollihar v. State, 46 S.W.3d 243, 253 (Tex.Crim.App. 2001); Malik, 

953 S.W.2d at 240. The law as authorized by the indictment means the statutory 

elements of the charged offense as modified by the factual details and legal theories 

contained in the charging instrument. Curry v. State, 30 S.W.3d 394, 404-05 

(Tex.Crim.App. 2000). 

 A child witness's testimony is sufficient to support a finding of sexual contact. 

Karnes v. State, 873 S.W.2d 92, 96 (Tex.App.--Dallas 1994, no pet.). As a matter of 

public policy, child victims of crimes are not expected to testify with the same clarity and 

ability as expected of mature and capable adults. Villalon v. State, 791 S.W.2d 130, 134 

(Tex.Crim.App. 1990). “Where the child has sufficiently communicated to the trier of 

fact that the touching occurred to a part of the body within the definition of [sexual 

contact], the evidence will be sufficient to support a conviction regardless of the 

unsophisticated language that the child uses.” Clark v. State, 558 S.W.2d 887, 889 

(Tex.Crim.App. 1977).

Appellant is correct that the child testified appellant touched him, referring to his 

“privates” and his “privacy,” but did not specifically testify that those words meant his 

genitalia. Appellant also is correct the child said his “privates” or “privacy” were used 

“[t]o go potty.” He also, however, agreed that he never told his mother appellant touched 

his “rear end.” Further, a sexual assault nurse examiner testified that during her 
11 

examination, the child pointed to the male genitalia on a body diagram and identified it 

as his “privacy.” 

 Considering all the evidence in the proper light, and taking into account we are 

examining a child’s testimony, we conclude the jury, as the sole judge of the credibility 

of witnesses and the weight to be given their testimony, reasonably could have 

determined beyond a reasonable doubt that the child was telling them appellant touched 

his genitals. See Clark, 558 S.W.2d at 889; see also Guia v. State, 723 S.W.2d 763, 

766 (Tex.App.--Dallas 1986, pet. ref'd) (testimony that appellant touched child in her 

"private place" where she "went to the bathroom" sufficient to establish sexual contact). 

We find the evidence sufficient to support the jury’s verdict and overrule 

appellant’s second issue. Having resolved each of appellant’s issues against him, we 

affirm the judgment of the trial court. 

 James T. Campbell 

 Justice 

Do not publish.