### IN THE TENTH COURT OF APPEALS
No. 10
- 19
- 00090
- CR
NACOMBI DARTON , Appellant v. THE STATE OF TEXAS , Appellee

From the 87th District Court Leon County, Texas Trial Court No. 18
- 0071CR

MEMORANDUM OPINION

In one issue with three sub

- parts , Appellant Nacombi Darton challenges his conviction for solicitation of pr ostituti on of a person younger than the age of eighteen.
We will affirm. Backgrou nd
T he underlying fa cts are not in dispute. Darto n approached a young woman, provided with the pse u do ny m “ Blue Sky, ” at a conv enience store located in Buffalo, Texas and offered to exchange money with her for sex. Darton was confronted by “ BlueDarton v. State Page 2

Sky ’ s ” f ather , who told Darton that “ Blue Sky ” was fourteen years of age. Darton apologized, stating that he did not realize “ Blue Sky ” was only fourteen years of age. A jury found Darton guilty, and the trial court assessed punishment at sixty years ’
confinemen t in the Texas Department of Criminal Justice Correctional I nstitution s
Div isi on.
Issues
In h is single issue, Darton asser ts that the trial court erred in the instructions given in the charge to the jury . Darton contends that the trial court : (1) includ ed an impro per definition of “ fee; ” (2) inform ed the jury it had the “ po wer ” to use reasonable inferences; and (3) fail ed to inform the jury that the presumption concerning the statute of limitations was nonbinding.
Darton did not object to the charge a t trial.
Di scussion
A. Invited Error

. Darton ’ s assertion regarding the d efinition of “ fee ” is not cognizable because he requested the definition

. The law of invited error pr ecludes a party
from tak ing “ advantage of an error that it invited or caused, e ven if such error is
fundamenta l. ” Woodall v. State , 336 S.W.3d 634, 644 ( Tex. Crim. App. 2011) ( citing Prystash
v. State , 3 S.W.3d 522, 531 (Tex. Crim. App. 1999)). B. Egregious Harm

. In reviewing a jury

- charge issue, an appellate court's first duty i s to determ ine whether erro r exists in the jury charge. Middleton v. State , 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)

. If error is found, the appellate c ourt must a nalyze that
error for harm. Id

. If an error was pro perly preserved by objection, revers al will beDarton v. State Page 3

necessary i f the error is not harmles s. Almanza v. State , 686 S

. W .2d 157, 171 (Tex. Crim. Ap p. 198 4 ) (op. on reh ’ g)

. Conversely, if error was not preserved at trial by a proper objection, as was the case here, a reversal w ill be granted only i f the error caused egregio us harm , me aning Darton did not recei ve a fair and impartial tri a l

. Id

. “ Jury

- charge error i s egregiously harmful if it affects the very basis of the case, deprives the defendant of a
valuab le right, or vital ly affects a defensi ve theory. ” Stuh ler v. St ate , 218 S.W. 3d 706, 719 (Tex. Crim. Ap p. 2007)

. The actual deg r e e of harm must be assayed in light of the whole record, “ including the jury charge, contested issues, weight of the probative evidence, arguments of counsel , and ot her relevant information. ” Jordan v. Stat e , 593 S.W.3d 340,
347 (Tex. Crim. App. 2020); s e e also Rogers v. State , 550 S.W.3d 190, 19 2 (Tex. Crim. App. 2018) ; Riggs v . State , 482 S.W.3d 270, 273

- 74 (Tex. A pp. — Waco 2015, pet. ref ’ d). T o ob tain
a reversal f or jury

- charge error, Dart on must have suf fered a ctual harm and n ot just merely theo retica l harm. Sanchez v. State , 376 S.W.3d 767, 775 (Tex. Crim. App. 2012)

. Assuming without deciding that the trial court erred, a review of the record,

“ including the j ury charge, contested issu es, weight of the probative evidence, arguments
of counsel , and other relevant information ” persuades us that any claimed errors did not affect the basis of the case, deprive Darton of a valuable right, or vitally affect a de fensi ve theory. Jordan , 593 S. W.3d at 3 4 7 ; Stuhler , 218 S.W.3d at 719. The testimony of the w itnesses against Darton was not contradicted . While
Darton ’ s attorney cross

- examined the wit nesses , the questions largely relat ed to the
witnesses ’ identification of Darton. Darton was captu red on the convenience store ’ s video approaching the child ; Dart on was followed from the store by the child ’ s father,Darton v. State Page 4

the child, and a convenience store cl e rk; the witnesses testi fied that Darton apologized
for his actions and cla imed he did not know the c hild was only fourteen years of age ; Darton fled the scene when he realized th e police had been notified ; and Darton was
arrested on ly three or four hundred y ards from the store. Darton did not call any
witnesses or present any e xhibits , and his opening s tatement and closing argument were based upon burden of proof. We conclud e that Darton did not suffer egregious harm

. 1
We overrule Darton ’ s sole issue and affirm the judgment of the trial court.

MATT JOHNSON Justic e Before Chief Ju stice Gray , Justice Johnson , and Justice Rose 2 Affirmed Opinion d e livered and f iled August 18, 2021 Do not publish [CRPM]

1 Darton also asserts that the cumulative effect of all the charge errors requires reversal. However, “ [ t ] he cumulative error doctrine pro vides relief only when constitutional err ors so fatally infect t he trial that they violated the trial ’ s fundamental fairness. ” Estrada v. State , 313 S.W.3d 274, 311 (Tex. Crim. App. 2010) (quoting United States v. Bell , 367 F. 3d 452, 471 (5th Cir. 2004) )

. Darton has not presented a constitutional error.

2 The Honorabl e Jeff Rose, Former Chief Justice of the Third Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See T EX

. G OV ’ T C ODE A NN

. §§ 74.003, 75.002, 75.003.