Phillip Abel Hernandez v. State

Opinion issued March 17, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NOS. 01-09-00631-CR

01-09-00632-CR

———————————

Phillip Abel Hernandez , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Case No. 1066022

Trial Court Case No. 1066023

O P I N I O N

A jury convicted appellant

Phillip Abel Hernandez of indecency with a child (trial court case no. 1066022;

appellate court case no. 01-09-00631-CR) and of aggravated sexual assault of a

child under 14 years old (trial court case no. 1066023; appellate court case

no. 01-09-00632-CR). See Tex.

Penal Code Ann. §§ 21.11, 22.021 (West Supp. 2010). The trial court assessed punishment at

15 years in prison on each conviction, to run concurrently. On appeal, Hernandez brings one issue

relevant to both convictions. Though he

made no objection at trial, he argues now on appeal that the trial court’s

response to a question posed by the jury during its deliberations was a comment

on the weight of the evidence and improperly lowered the State’s burden of

proof. We conclude that the trial

court’s instruction was erroneous because it was a comment on the weight of the

evidence, but in light of the entire record, we conclude that Hernandez was not

deprived of a fair and impartial trial.

Because we find no egregious harm, we affirm the trial court’s judgment.

I. Factual

background

Hernandez was accused of sexually assaulting his

daughter, C.H., on two occasions before her fourteenth birthday. C.H. testified that the first incident

occurred when she was in the fifth grade.

C.H.’s family was temporarily living with her aunt because Hernandez was

unemployed. At that time, C.H. and her

younger brother shared a bedroom with their parents. Ordinarily, C.H.’s parents slept in the bed,

and C.H. and her brother slept on pallets on the floor beside the bed. At trial, C.H. drew a diagram of the room,

showing the orientation of the door, window, furniture, and where she and her

brother slept. C.H. testified that she woke

early one morning when she felt a man lying beside her. C.H. said she could tell it was a man because

of his big hands. She recalled the time

of day because she remembered the sun coming up from the window. She testified that she was lying on her side,

and the man was lying beside her, his front touching her back. C.H. testified that she knew it was her

father and not her younger brother by the size of the man’s hands and because

she later turned and saw him. She said

that Hernandez put his hand under her shirt and began rubbing her breasts. Then he put his hand inside her underwear and

rubbed the outside of her vagina. She

testified that she was confused and scared, so she kept her eyes closed and

pretended to sleep, hoping that her mother, who was sleeping in the bed nearby,

would wake up.

C.H. alleged that the second incident occurred when

she was in the seventh grade. Her

parents had been separated for several months, during which time the children

lived with their mother. When the

parents reconciled, they moved into an apartment together. C.H. testified that she was home alone with

Hernandez, while her brother was with a relative who lived nearby. She said that her father had been assembling

bunk beds upstairs while she watched television downstairs in the living

room. When her father came downstairs,

they began to wrestle playfully. C.H.

recalled that she was wearing a black skirt and a pink and black top and that

she ended up sitting on top of his stomach.

While she was straddling his stomach, he commented on

how much she had grown during the preceding months when he had not seen

her. He then put his hands under her

shirt and began rubbing her breasts.

C.H. testified that he stopped when she told him to stop, but he then

started trying to put his hands up her skirt. She testified that when she ran

from him, he told her to go into the downstairs bathroom, and she

resisted. She said, “I was scared. I knew what he was going to do to me in

there.” She either elbowed him or kicked

in the stomach, and “that’s when he let go of me and I ran upstairs to my

room.” In her room, she changed into pajama

pants and watched television. Soon

thereafter, Hernandez came to her room, grabbed her arms from behind, forced

her to her knees, pulled down her pants and underwear, and put his fingers in

her vagina. She testified that she knew

his fingers were there because she “could feel the long nails,” and it

hurt. She ran to the bathroom and

cried. C.H. said Hernandez later

apologized and said that “he wouldn’t do it again unless I told him to . . .

touch me.”

A couple of weeks later, Hernandez threatened to spank

C.H. with a belt because she had been fighting with her brother. C.H. ran from Hernandez and told her mother

that he had touched her. C.H. testified

that she was afraid her mother would not believe her, but that she “didn’t

think he had the right to punish [her] . . . after what he did.” Her mother never called the police or child

protective services.

Approximately one year later, C.H. and her younger

brother evacuated with their maternal grandparents when Houston was threatened

by Hurricane Rita. C.H. stayed with

relatives at a cabin while her parents remained behind in Houston. One night while evacuated from Houston,

C.H.’s adult half-brother noticed her sitting alone outside, crying. He repeatedly asked her what was wrong. Eventually, she told him that her father had

touched her, and she told him not to tell anyone because she was

embarrassed. At trial, her brother

testified that C.H. cried, avoided eye contact, and appeared embarrassed when

she spoke to him. He told his uncle

about the disclosure, and the uncle told his wife, C.H.’s Aunt Romana.

The next morning, C.H. came to Romana’s bedroom. Romana, who had been designated as the outcry

witness, testified that she knew something was wrong based on C.H.’s demeanor

and asked if she was okay. C.H. began

crying and shaking, and Romana reassured her that anything that happened was

not her fault. Romana testified that

C.H. kept asking, “Why?” and “How could he hurt me like this?” Romana said that C.H. told her Hernandez came

into her room, pulled down her pants, and put his fingers inside her

vagina. Romana testified that C.H. said

that she then locked herself in the bathroom and that Hernandez later

apologized and promised never to do it again unless she “wanted him to.” Romana asked if this was the first time

Hernandez had done anything like this, and C.H. then told her about the first

incident. She told Romana that while

sleeping in the same bedroom at her aunt’s house, Hernandez lay down beside her

and fondled her breasts and vagina while she pretended to sleep.

C.H.’s relatives contacted her mother, who made Hernandez

leave the home. The police were

contacted, and the charges that are the subject of this appeal were brought

against Hernandez.

II. Procedural

background

During voir dire, the court explained to the venire

panel the State’s burden of proof and the defendant’s presumption of innocence.

The State questioned the venire panel about the likelihood that a perpetrator

would commit a crime in front of eyewitnesses and whether the jury could

convict on the testimony of a single witness.

State: Now,

the law says that if I prove my case beyond a reasonable doubt with only one

eyewitness, then what’s the verdict?

Venireperson: Guilty.

State: Come

on?

Venire: Guilty.

State: Guilty. Does the law tell me who that witness has to

be?

Venire: No.

The defense did not object to any of the State’s voir dire questions

about convicting on the testimony of a single witness, and Hernandez does not

challenge this line of questioning on appeal.

In addition to the

testimony of C.H., her older half-brother, and her aunt, the State presented

testimony from Claudia Mullin, the forensic interviewer who interviewed C.H. at

the Harris County Children’s Assessment Center, and Dr. Reena Isaac, who

conducted a physical and ano-genital examination.

Mullin initially testified

about her training and experience in conducting forensic interviews, noting

that she had conducted thousands of such interviews. C.H. was 13 years old at the time of the

interview and “developmentally on target.”

Mullen said that children who have been abused on more than one occasion

often have difficulty pinpointing the date or time frame when the abuse

occurred. She said she would not be

surprised if the child were wrong by a year or two as to the date when the

abuse occurred.

Based on her training and experience, the judge

permitted Mullin to testify generally about reasons why a person would delay

making an outcry of abuse, such as being in a state of shock or wondering if

other people will believe the allegations.

Mullin testified without objection that she found plausibility,

consistency, appropriate language, and sensory details in C.H.’s statements

during her interview. For example, C.H.

was tearful during the outcry portion of her interview, and she provided many

sensory clues.

Dr. Isaac testified that

she performed a complete physical examination of C.H. at the Children’s

Assessment Center. This examination was

done nearly six months after Mullin’s interview. C.H. provided the social history, telling Dr.

Isaac about both instances of sexual abuse that she alleged against her

father. Dr. Isaac said that C.H. was

cooperative, anxious, and tearful during the interview part of the

examination. She noted that C.H. had

thoughts of hurting herself but no plan to carry out a suicidal thought. Dr. Isaac testified that she found nothing

abnormal in C.H.’s examination. However,

she also testified that a normal examination does not necessarily rule out the

possibility of sexual abuse.

Hernandez testified in his

own defense, denying having molested or sexually assaulted C.H., and

controverting certain details of her accounts.

First, he disputed C.H.’s depiction of the bedroom the family shared

when she was in fifth grade. According

to Hernandez’s description, he would have had to crawl over C.H.’s mother to

get out of the bed when she was sleeping.

He also testified that C.H.’s mother was a light sleeper and she would

have woken up if he crawled over her. He

said he never had lain down beside C.H. when they slept in that bedroom. He also testified that he and all his

children habitually bite their nails.

Hernandez testified that after his separation from

C.H.’s mother, they reunited and moved into an apartment with their

children. He noticed changes in C.H.’s

behavior and demeanor: she fought with her brother, she argued with her mother,

and she was generally disrespectful and argumentative. One day, while Hernandez and C.H.’s mother

were napping, C.H. fought with her brother in the living room. The mother confronted the children, and when

Hernandez came into the living room, he saw C.H. threatening to punch her

mother. Hernandez said that he got his

belt, and he was going to spank her for trying to hit her mother. C.H. ran upstairs and hid under the bathroom

sink. Hernandez said that he “hit her

with the belt a couple of times to see if she would get out but she didn’t get

out, she just kept screaming and screaming.”

C.H. ran downstairs, and when Hernandez followed, he saw C.H. and her

mother talking and crying. The mother

yelled and asked if C.H.’s allegations were true. Hernandez testified that he believed C.H.

fabricated the allegations against him because she was angry that he tried to

spank her. On cross-examination, he

conceded that although he had spanked C.H. with a belt in the past, she did not

accuse him of sexual abuse after those spankings. He acknowledged that C.H. had told the truth

about their living with her aunt when he was out of work, and that C.H. got

excellent marks for behavior during the time frame when he contends she behaved

badly at home.

Hernandez’s final witness

was his older daughter, Samantha. She

testified that he was a loving father whom she saw every other weekend and some

holidays as a child. She said that he

never behaved inappropriately toward her and that bites his nails and keeps

them very short.

After the close of evidence, the

trial court instructed the jury as to the relevant law. The jury charges included instructions about

the presumption of innocence, the State’s burden of proof, and the jury’s role

as factfinder:

All persons are presumed to be innocent and no person

may be convicted of an offense unless each element of the offense is proved

beyond a reasonable doubt. The fact that

he has been arrested, confined, or indicted for, or otherwise charged with the

offense gives rise to no inference of guilt at his trial. The law does not require a defendant to prove

his innocence or produce any evidence at all.

The presumption of innocence alone is sufficient to acquit the

defendant, unless the jurors are satisfied beyond a reasonable doubt of the

defendant’s guilt after careful and impartial consideration of all the evidence

in the case.

The prosecution has the burden of proving the

defendant guilty and it must do so by proving each and every element of the

offense charged beyond a reasonable doubt and if it fails to do so, you must

acquit the defendant.

. . . .

You are the exclusive judges of the facts proved, of

the credibility of the witnesses and the weight to be given their testimony,

but the law you shall receive in these written instructions, and you must be

governed thereby.

During their deliberations, the jurors sent a note to the

trial court stating:

Voir

Dire

We need the piece of law regarding

the “single witness” as it pertains to evidence. Basically, what the law says.

The trial court responded in writing:

A conviction is supportable

on the uncorroborated testimony of the victim of the sexual offense if

you believe the witness beyond a reasonable doubt.

There is no record of any discussion by the trial court and counsel of

the jury’s note. The response returned

by the trial court does not indicate whether counsel approved of the response. There is no record that Hernandez objected to

this instruction, and on appeal, he concedes that he did not.

The jury returned guilty

verdicts on both counts, and the trial court assessed punishment. Hernandez appealed, arguing that the trial

court’s response to the jury’s question commented on the weight of the

evidence, improperly lowered the State’s burden of proof, and deprived him of a

fair and impartial trial.

III. Analysis

A trial court’s substantive answer to a jury question during

deliberations is considered an additional or supplemental instruction to the

jury that is governed by the requirements of article 36.14 of the Code of

Criminal Procedure. Daniell v. State , 848 S.W.2d 145, 147 (Tex. Crim. App. 1993); see Guajardo v. State , 176 S.W.3d 402,

405 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). Article 36.14 requires that the trial court

deliver to the jury a “written charge distinctly setting forth the law

applicable to the case; not expressing any opinion as to the weight of the

evidence, not summing up the testimony, discussing the facts or using any

argument in his charge calculated to arouse the sympathy or excite the passions

of the jury.” Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007). “A charge that assumes the truth of a

controverted issue is a comment on the weight of the evidence and is

erroneous.” Whaley v. State , 717 S.W.2d 26, 32 (Tex. Crim. App. 1986); see also Grady v. State , 634 S.W.2d 316,

317 (Tex. Crim. App. 1982) (observing that “trial court in its charge to a jury

should never give the jury an instruction which constitutes a comment by the

court on the elements of the alleged offense, or assumes a disputed fact”).

a.

Standard of review

We employ a two-step process to review allegations of

jury-charge error. First, we determine

whether error exists in the charge. Ngo v. State , 175 S.W.3d 738, 744 (Tex.

Crim. App. 2005). Our review should not

be limited to just one part of the charge standing alone. Selvage

v. State , 680 S.W.2d 17, 20 (Tex. Crim. App. 1984); Ybarra v. State , 890 S.W.2d 98, 106 (Tex. App.—San Antonio 1994,

pet. ref’d). The meaning of a jury

charge “should be taken from the whole charge, not just from a certain few

instructions read in isolation.” Plata v. State , 926 S.W.2d 300, 302

(Tex. Crim. App. 1996), overruled on

other grounds by Malik v. State , 953 S.W.2d 234 (Tex. Crim. App. 1997).

If there is error, we then proceed to review the record to

determine whether sufficient harm was caused by the error to require reversal

of conviction. Id. When an appellant claims

that a jury-charge error violated a constitutional right, but he has failed to

preserve the error, article 36.19 of the Texas Code of Criminal Procedure sets

out the applicable standard of review. Hutch v. State , 922 S.W.2d 166, 170 (Tex.

Crim. App. 1996). That article provides in

part that “the judgment shall not be reversed unless the error appearing from

the record was calculated to injure the rights of defendant, or unless it

appears from the record that the defendant has not had a fair and impartial

trial.” Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006). Thus, when the defendant fails to object or

states he has no objection to the charge, the court will not reverse for charge

error unless the record shows egregious harm to the defendant. Ngo ,

175 S.W.3d at 743–44.

b.

Review of jury charge

In its reply to the jury’s note asking for “the piece

of law regarding the ‘single witness’ as it pertains to evidence,” the trial

court stated: “A conviction is supportable on the uncorroborated testimony of

the victim of the sexual offense if you believe the witness beyond a reasonable

doubt.” The State relies upon Casey v. State , 215 S.W.3d 870 (Tex.

Crim. App. 2007), and argues that the instruction was proper despite the

reference to a “victim” because it tracked article 38.07 of the Code of

Criminal Procedure * and therefore was a

correct statement of law. We conclude

that Casey is distinguishable from

this case for two reasons — the statute tracked by the court’s instruction was not

relevant law in this trial, and the “victim” reference assumed the truth of the

key contested issue.

As a general proposition, a jury charge that tracks

the language of the relevant statute is sufficient and therefore not erroneous.

See

Casey , 215 S.W.3d at 886–87; Martinez

v. State , 924 S.W.2d 693, 699 (Tex. Crim. App. 1996); Riddle v. State , 888 S.W.2d 1, 8 (Tex. Crim. App. 1994) (“A jury

charge which tracks the language of a particular statute is a proper charge on

the statutory issue.”). But article

38.07, titled “Testimony in Corroboration of Victim of Sexual Offense,” was not

a relevant statute for purposes of instructing the jury because it was

inapplicable to this case. The provision

“allows a conviction for a sexual offense to rest on the uncorroborated

testimony of the victim only if there is evidence that she made an outcry to

some person other than the defendant within six months of the offense.” Scoggan

v. State , 799 S.W.2d 679 , 680–81 (Tex. Crim. App. 1990). Historically, the “corroboration or outcry”

requirements of article 38.07 did not apply to child victims of sexual

assaults who could never be accomplice witnesses to the crime because of their

inability to give legally operative consent to sexual intercourse. See id.

(citing Hernandez v. State , 651

S.W.2d 746 , 751–53 (Tex. Crim. App. 1983) (opinion on rehearing adopting

original concurring opinion as majority opinion)). Moreover, the plain language of the statute

exempts from its requirements a complainant who, as in this case, is 17 years

old or younger at the time of the offense.

See T ex . C ode C rim . P roc .

A nn . art. 38.07(b)(1) (West

2005). Thus, although the trial court’s

instruction to the jury was a correct statement of the law insofar as it

correctly mirrored a provision of the Code of Criminal Procedure, it

nevertheless did not apply to this case and therefore was not the relevant law

for purposes of charging the jury in this case.

In addition to approving the use of language directly

tracking the relevant statute, the Court of Criminal Appeals in Casey also noted that it was “not

persuaded that the charge as written ‘assume[d] the truth of a controverted

issue,’ or that the appearance of the word ‘victim’ in the charge without the

modifier ‘alleged’ is a comment by the trial court which assumes the truth of a

controverted issue — the issue of consent.”

Casey , 215 S.W.3d at 887 . As noted previously by this Court in another

case involving a jury instruction based upon article 38.07:

It appears that the Court of Criminal Appeals drew a

distinction between the Penal Code provision at issue in Casey and the Code of Criminal Procedure provision at issue here. In Casey ,

the Penal Code provision from which the jury charge language was taken

describes an aggravating factor that elevates a crime from sexual assault to

aggravated sexual assault if the defendant administered a date-rape drug “to

the victim of the offense with the intent of facilitating the commission of the

offense.” Tex. Penal Code Ann. § 22.021(2)(A)(vi) (West Supp. 2008).

The date-rape drug language forms the

second of two prongs of the statute, the first being that a sexual assault

occurred. The “victim” language in Casey did not assume the truth of a

contested issue because, in order to reach the “victim” language, the jury in Casey had to have found that the

complainant was indeed a victim of sexual assault.

Bratcher v. State , No. 01-08-00610-CR, 2009 WL 1331344 ,

at *11 (Tex. App.—Houston [1st Dist.] May 14, 2009, pet. ref’d) (not designated

for publication). In contrast to Casey , the reference to “victim” in this

case did embrace a contested issue — whether C.H. was a “victim” of

actions allegedly committed by Hernandez, and thus whether those alleged

actions constituted a “sexual offense.”

The language used by the trial court to respond to the

jury’s question, at least when considered in isolation, assumed the premises

that the complainant was a victim and that a sexual offense was committed. Accordingly, to the extent this aspect of the

jury instructions assumed the truth of a controverted issue, it was a erroneous

comment on the weight of the evidence. See id. ; see also Talkington v. State , 682 S.W.2d 674 , 674–75 (Tex. App.—Eastland

1984, pet. ref’d) (jury charge reference to “victim” in rape case was improper

comment on weight of evidence because there was no dispute that sexual

intercourse had occurred and sole issue whether it was consensual and the

complaint was truly a “victim”); accord Veteto

v. State , 8 S.W.3d 805 (Tex. App.—Waco 2000, pet. ref’d); Hernandez v. State , No. 03-03-00758-CR,

2004 WL 2110396 , at *5–6 (Tex. App.—Austin Sept. 23, 2004, no pet.) (not

designated for publication).

We conclude that the trial court erred by commenting on the

weight of the evidence. See Whaley , 717 S.W.2d at 32 . Because we hold that the trial court erred by

commenting on the weight of the evidence, we need not address whether the same

statements were also erroneous because they were nonresponsive. We now turn to our harm analysis and

consider, among other things, Hernandez’s argument that the trial court’s error

improperly lowered the State’s burden of proof.

c.

Harm

analysis

Having found error, because there was no objection at

trial we must analyze the error for egregious harm, which exists when a court

determines that “the case for conviction or punishment was actually made

clearly and significantly more persuasive by the error.” Saunders

v. State , 817 S.W.2d 688, 692 (Tex. Crim. App. 1991). The purpose behind this analysis is to show

whether any jury charge error has actually—not merely theoretically—harmed the

accused. Almanza v. State , 686 S.W.2d 157, 174 (Tex. Crim. App. 1984). The actual degree of harm must be evaluated

in light of: (1) the entire jury charge; (2) the state of the evidence,

including the contested issues and the weight of the probative evidence; (3)

the final arguments of the parties; and (4) any other relevant information

revealed by the trial record as a whole.

Allen v. State , 253 S.W.3d

260, 264 (Tex. Crim. App. 2008). A

jury-charge error harms a defendant egregiously if it affects the “very basis”

of a case and “deprives the defendant of a valuable right, or vitally affects a

defensive theory.” Id.

1. Jury

charge . Before the jury began its deliberations, the

trial court instructed the jury on each of the two charged offenses. In its jury charges, the trial court

instructed the jury on the presumption of innocence and the necessity to acquit

the defendant unless the prosecution has proved “each and every element of the

offense charged beyond a reasonable doubt.”

The charges included application paragraphs properly applying the law to

the facts of the case. These charges did

not use the word “victim.” The

application paragraphs referred to C.H. by her name, and although it was clear

from context that C.H. was the alleged “victim” of sexual assault, the

instruction the trial court gave the jury in response to its note was given in

the abstract and did not apply the law in relation to this case. The trial court’s response to the jury’s

question must be reviewed in the context of the entirety of the court’s

charge. See Plata , 926 S.W.2d at 302 . Viewed in this context, although the

supplemental instruction improperly referred to the complainant as “victim,” it

did not override or contradict the other parts of the charge that correctly

instructed the jury as to the presumption of evidence and the burden to prove

all elements of the charged offenses beyond a reasonable doubt.

2. State of the evidence .

This was not a two-witness case—the jury was not put to the task of

choosing to believe only C.H. or only Hernandez. The State brought forth other witnesses and

circumstantial evidence that corroborated C.H.’s testimony. The State introduced C.H.’s detailed

testimony and the video recording of her interview at the Children’s Assessment

Center. In addition, the State presented

C.H.’s brother, who testified that he found her crying and alone and that she

told him her father had inappropriately touched her. The State also presented C.H.’s aunt Romana,

who testified about what C.H. told her as an outcry witness. Finally, the State introduced Mullin, the

forensic interviewer, and Dr. Isaac, the examining doctor. Each witness testified that C.H. had repeated

her allegations and each witness described the allegations to the jury, who was

able to determine how consistent C.H.’s story remained. In addition, C.H.’s brother, aunt, Mullin,

and Dr. Isaac all testified about how tearful and upset C.H. was when

describing the alleged sexual assaults. Dr.

Isaac testified that C.H. wanted to harm herself.

Hernandez provided controverting

evidence about the location of furniture in the family’s shared bedroom and the

length of his fingernails. He denied the

allegations. However, he conceded that

C.H. was telling the truth about some of her testimony and his story about

getting his belt to spank her for fighting with her brother was consistent with

C.H.’s account of what happened the day she first told her mother that her

father had assaulted her. Moreover,

Hernandez’s testimony that C.H. had exhibited behavior problems at home was

juxtaposed with evidence that she received excellent marks for her behavior at

school during the same time frame.

Hernandez argues that the

trial court’s response to the jury’s question invited the jury to disregard all

discrepancies in C.H.’s story as told to the various witnesses. Romana’s testimony arguably conflicted with

C.H.’s, and Hernandez contends that the trial court’s instruction precluded the

jury from finding reasonable doubt based on this conflict. In particular, Hernandez argues that C.H.

testified that he assaulted her while she was on her knees, but Romana

testified that C.H. told her that Hernandez was sitting on the edge of her bed

when he assaulted her. While such an alleged

inconsistency was relevant to the jury’s determination of C.H.’s credibility, the

jury was not required to resolve such details in order to convict Hernandez. Ultimately, the trial court’s instruction did

not invite the jury to disregard inconsistencies that went C.H.’s credibility. To the contrary, in order to convict the

instructions expressly required the jury to believe C.H.’s testimony on the

elements of the charged offenses beyond a reasonable doubt.

3. Arguments of counsel . During

its closing arguments, the State referred to the voir dire questions about the

one-witness rule. The prosecutor

reminded the jury, “[E]ach and every one of you promised me that if you

believed the child, the evidence would demand a guilty verdict.” The State, however, did not focus its closing

on this argument. Rather, the State’s

closing arguments summarized the evidence and urged the jury to conclude that

C.H. was credible and to return a guilty verdict. Importantly, the State’s closing arguments

preceded the error identified by Hernandez’s appeal, which occurred after the

presentation of all evidence and the final arguments of counsel. There was no opportunity for the State to

present any argument capitalizing on or exacerbating the effect of the trial

court’s error. Accordingly, the

arguments of counsel did not cause the erroneous instruction to become

egregious.

4. Other relevant information .

Finally, we note that the State discussed the so-called one-witness rule

with the venire panel during voir dire and reminded the jury about it during

closing arguments. Hernandez did not

object in either instance.

* * *

Based on the entire record, we conclude that the trial

court’s error did not deprive Hernandez of a fair and impartial trial. Because we consider the jury charge as a

whole, we conclude that the additional instruction, which required the jury to

believe C.H. beyond a reasonable doubt, did not lower the State’s burden of

proof, when read in conjunction with the application paragraph that required

the jury to find every element of the offense proven beyond a reasonable

doubt. The verdict was supported by C.H.’s

direct testimony, circumstantial evidence supporting C.H.’s credibility—including

her demeanor, thoughts of harming herself after the assaults, sensory details

provided in her story—and the consistency of her story. The error was not exacerbated by arguments of

counsel, because it occurred after closing arguments. Hernandez did not object to other instances

in which the State talked about the so-called one-witness rule. Having considered all of these factors, we

cannot say that the trial court’s error actually made the case clearly and

significantly more persuasive. See Saunders , 817 S.W.2d at 692 . We overrule Hernandez’s issue.

Conclusion

We

affirm the judgments of the trial court.

Michael

Massengale

Justice

Panel consists of Justices Keyes, Sharp, and

Massengale.

Justice Sharp, dissenting.

Publish. Tex.

R. App. P. 47.2(b).

* Article

38.07 of the Code of Criminal Procedure provides:

Testimony in Corroboration of Victim of Sexual Offense

(a) A conviction under Chapter 21 [sexual offenses],

Section 22.011 [sexual assault], or Section 22.021 [aggravated sexual assault],

Penal Code, is supportable on the uncorroborated testimony of the victim of the

sexual offense if the victim informed any person other than the defendant, of

the alleged offense within six months after the date on which the offense is

alleged to have occurred.

(b) The requirement that the victim inform another

person of an alleged offense does not apply if at the time of the alleged

offense the victim was a person:

(1) 17 years of age or younger;

(2) 65 years of age or older; or

(3) 18 years of age or older who by reason of age or

physical or mental disease, defect, or injury was substantially unable to

satisfy the person’s need for food, shelter, medical care, or protection from

harm.

T ex . C ode

C rim . P roc . A nn . art.

38.07 (West 2005).