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 BR ADLEY S. UNDERWOOD, JUDGE

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

MEMORANDUM OPINION Appellant Darwin N. Whit e appeals from his jury conv iction of the offense of indecency with a child and the resulting sent ence 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 indictm ent alleging that on a day the previous January, he “did then and there in tentionally and knowingl y, with the intent to arouse and gratify the sexual desire of any person, engage in sexual contact by2 touching the genitals of [the vi ctim], 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 calle d 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 tria l, testified that he and his sister sometimes stayed overni ght 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 expl ained Red used his hand to rub lotion on his “private” under his underwear.

A nurse testified she found no evidenc e of trauma to the child when she examined him. She also test ified 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 refe rred to as “grandma” was introduced at trial. It contains the statem ent, “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 indec ency with a child and the court imposed the sentence noted. Th is 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 te rm of not more than 20 years or less than 2 years and a fine not to exceed $10,000. Te x. 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 t he 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 t hat on or about January 28, 2008, in Lubbock County, Texas, as alleged in the in dictment, the defendant DARWIN WHITE, did then and there intentionally or knowingly with the intent to arouse or gratify the sexu al 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 o ffense of indecency with a child, and so say by your verdict.

2 And, although it is not par t of appellant’s complaint, t he two definitions included are inconsistent. The charge described an int entional state with respec t to the nature of conduct, but limited its description of the knowi ng state to that apply ing 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 t he error to require reversal. Id

. If there is error in the court's charge but t he appellant did not pres erve it at trial, as here, we must decide whether the e rror 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). Eg regious harm is the type and level of harm that affects the very bas is 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 entir e 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 th e 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 difficu lt standard to prove and must be determined5 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 t han 17 years of age, whether the child is of the same or opposite sex, the person . . . engages in sexual co ntact with the child or causes the child to engage in sexual contact.” Te x. 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 A nn. § 21.11(a)(2) (West 2011). That specific intent can be inferred from the defendant's conduct, his re marks, 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 disbelie ve other testimony. See Tex. Code Crim. Proc. A nn. 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 accura te statements of the subs tantive requirements for conviction of indecency with a ch ild, including an accurate reci tation of the definition of6 “sexual contact.” 3 That presentation of the element s of the offense makes no mention of culpable mental stat es 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 incl uded the definitions of intentional and knowing. As noted also, the application paragraph required the jury, to convict, to find appellant did “intentionally or kn owingly with the intent to arouse or gratif y 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, 20 07 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 lang uage stated “with the in tent to arouse or gratify the sexual desire . . . intentionally or knowingly engage in sexual contact . . . ”. In Chiodo, the court noted it was because the applicat ion paragraph “disjunctively listed” the culpable mental states of intentionally and kno wingly with the required specific intent to arouse or gratify that the jury could have found the defendant guilt y 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 hi s intent was lacking. His

3 See Tex. Penal Code Ann. § 21.11(c) (West 2011) (def ining 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 r ubbed lotion on his “private.” There was evidence that the child had eczema, and appellant acknowledged in his written statement to police that there were occa sions on which he rubbed lo tion on the boy. His statement says he “would only rub it on his stomach and ba ck.” 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 hi s 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 sugges ted 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 th e conduct prohibited by Sect ion 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 confession al but were simply the anguished reaction of a 65-year-old man to the accu sation made against him. Appellant also8 argued to the jury that the boy had not made su fficiently clear in his testimony whether he was saying appellant touched his geni tals 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 definiti ons 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 St ate urged the jury to infer t hat intent fr om 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 evi dence, and the argument of counsel, we find the unobjected-to error of the in clusion of the culpable mental states of intentionally and knowingly in the charge did not affect the ve ry 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 resp onse, “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 ar gument on closing, arguing appellant’s letter demonstrated hi s guilt, the prosecutor made the statements, “He did it intentionally. He knows what he di d. The letter shows it.”

6 The prosecutor argued, “How do you kn ow what his intent was to touch [the boy’s] penis with the lotion? Why does a 60 pl us 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 th at it denied a ppellant 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 t he child’s references to his “privates” and “privacy,” and the statement m entioned 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 s upporting 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 al l 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). T he standard gives full play to the responsibility of the trier of fact to resolv e conflicts in the test imony, 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 measur ed by the elements of the offense as defined by the hypothetically co rrect 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 , 95310 S.W.2d 234, 240 (Tex.Crim.App. 1997). Such a c harge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily re strict 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 indictm ent means the statutory elements of the charged offense as modified by the factual details and legal theories contained in the ch arging 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 test ify with the same clarity and ability as expected of ma ture 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 t hat the child uses.” Clark v. State , 558 S.W.2d 887, 889 (Tex.Crim.App. 1977).
Appellant is correct that t he child testified appellant t ouched him, referring to his “privates” and his “privacy,” but did not specif ically 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 her11 examination, the child pointed to the male genitalia on a body diagram and identified it as his “privacy.” Considering all the evidenc e in the proper light, and taking into account we are examining a child’s testimony, we conclude the jury, as the so le 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) (testim ony that appellant t ouched child in her "private place" where she "went to the bathroom " sufficient to establish sexual contact).

We find the evidence sufficient to s upport the jury’s verdict and overrule appellant’s second issue. Having resolved eac h of appellant’s issu es against him, we affirm the judgment of the trial court.

James T. Campbell Justice

Do not publish.