# Mohammed Omar Ali v. the State of Texas

> Texas Court of Appeals, 1st District (Houston) · May 4, 2023

URL: https://www.frixlaw.com/law-library/cases/9392889

## Case

- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** May 4, 2023
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9392889

## How later opinions describe it (automated extraction)

- emphasizing that reviewing court—and not counsel— determines, after full examination of proceedings, whether appeal is wholly frivolous
- stating that reviewing court may not reevaluate weight and credibility of evidence and thereby substitute court’s judgment for that of factfinder
- stating that reviewing court must give deference to “the responsibility of the trier of fact to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts”
- stating that reviewing court considers charge as whole in determining whether particular instruction is comment on evidence

## Opinion text

Opinion issued May 4, 2023

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-21-00604-CR
NO. 01-21-00605-CR
NO. 01-21-00607-CR
———————————
MOHAMMED OMAR ALI, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 400th District Court
Fort Bend County, Texas
Trial Court Case Nos. 20-DCR-090153, 20-DCR-090152, 20-DCR-090150A

MEMORANDUM OPINION

Appellant Mohammed Omar Ali appeals from his convictions and

punishments for three related sex offenses against three of his former stepdaughters:
one count of the first-degree felony offense of aggravated sexual assault of a child

and two counts of the second-degree felony offense of indecency with a child by

sexual contact.1 See TEX. PENAL CODE §§ 22.021(a)(1)(B)(i), (2)(B), (e),

21.11(a)(1), (d). The trial court sentenced Ali to thirty-five years’ imprisonment for

the aggravated sexual assault conviction and ten years’ imprisonment for each of the

convictions for indecency with a child, with the sentences to run concurrently. Id. at

§§ 12.32(a), 12.33(a).

In appellate cause number 01-21-00604-CR, which is an appeal from one of

the convictions for indecency with a child, Ali argues in a single issue that the trial

court erred by improperly commenting on the weight of the evidence in the jury

charge. In appellate cause numbers 01-21-00605-CR and 01-21-00607-CR, Ali’s

appointed counsel on appeal has filed a motion to withdraw, along with an Anders

brief stating that the records in these two appeals present no reversible error and the

two appeals are without merit and are frivolous. We affirm.

1
Appellate cause number 01-21-00604-CR corresponds to trial court case number
20-DCR-090153, concerning one of the convictions for indecency with a child.
Appellate cause number 01-21-00605-CR corresponds to trial court case number
20-DCR-090152, concerning the second conviction for indecency with a child.
Appellate cause number 01-21-00607-CR corresponds to trial court case number
20-DCR-090150A, concerning the conviction for aggravated sexual assault of a
child under fourteen years of age.

2
Background

In 2013, Ali married Rose Ira and moved into her Fort Bend County home.2

Ira was previously married to Alex Ira, who died in a car accident in 2008, and the

Iras had nine children together: two sons and seven daughters ranging in age from

fifteen to thirty-one years old at the time of trial. Relevant here, the seven sisters

included Lily, the oldest child; Fanny, the middle child; Jenny and Amy, two of the

younger children; and Yvette, the youngest child. Each of these sisters—along with

a brother and an uncle—lived at home with Rose when Ali moved into the home,

although some of these family members eventually moved out of the house.

Ali was devoutly religious. He taught the Quran at a local mosque and also

privately tutored some children in their religious studies. When he moved into the

Ira home, Ali took an active role in the religious education of the Ira children who

still lived at home. For example, he would wake the children up each morning before

the sun rose to pray and tutor them in the Quran. He also drove some of the children

to school and other activities.

In 2013, when Fanny was fifteen years old, she and Ali were studying the

Quran together in Ali and Rose’s bedroom, which they did not typically do. No one

else was in the bedroom, although some other family members were in the adjacent

2
We use pseudonyms to protect the privacy of the minor complainants and their
family members.

3
living room. While standing next to Fanny, Ali began touching Fanny’s breasts and

vagina over her clothing. Fanny left the bedroom, found her oldest sister Lily, and

reported Ali’s conduct.3 Lily promptly told her mother and brother, who were in the

living room, and they in turn confronted Ali, who excused the touching as a

misunderstanding. The family accepted this explanation and took no other action on

the allegations at that time. Fanny testified at trial, however, that Ali would often

come into her bedroom early in the morning and wake her by touching her body,

which made her feel uncomfortable.

In December 2019, Lily heard concerning rumors about Ali’s behavior in the

community. She called a family meeting, which Ali attended along with Rose and

all the siblings except the two youngest sisters: Amy and Yvette.4 While Lily was

discussing the rumors, Fanny mentioned the 2013 incident with Ali. At that point,

Jenny began hyperventilating and having a panic attack, which Lily recognized

because she was an emergency room nurse. Jenny, who was seventeen years old

when the meeting occurred, told everyone in the room that Ali had touched her

inappropriately too. She testified at trial that Ali repeatedly molested her beginning

when she was in fifth grade and “throughout middle and high school years.”

3
Fanny testified that she typed out what had happened in an app on her phone, which
she then showed to Lily.
4
Fanny and her two brothers had moved out of the house by this time and participated
in the meeting by FaceTime videoconferencing.

4
After hearing these allegations against Ali, Lily went to Amy’s bedroom and

asked Amy if Ali had ever touched her inappropriately. Lily testified that Amy began

“shaking and crying” and made an outcry to Lily. Amy told Lily—and testified at

trial—that in March 2017, when Amy was thirteen years old and in seventh grade,

Ali attempted to have sexual intercourse with her. At the time, Rose and Lily had

taken a trip to Dubai while the children remained at home with Ali. Amy became

sick at school and was sent home. Amy was vomiting, so Ali insisted that she lie

down in his and Rose’s bed ostensibly so she could be nearer to a bathroom. While

sleeping, Amy woke up to Ali removing her underwear and attempting to have

sexual intercourse with her, causing her pain. Amy testified that Ali molested her

several times before this incident in her bedroom at night by touching her

inappropriately while he masturbated.

The Ira family confronted Ali with these allegations, and Ali packed up his

belongings and left the house. The family did not see Ali again until trial in these

cases.

Fanny decided to report Ali’s behavior to law enforcement shortly after the

December 2019 family meeting. Two of the children—Jenny and Amy—were

forensically interviewed by specialists at the Fort Bend County Children’s Advocacy

Center (“CAC”), which offers services to children who have or may have been

sexually or physically abused.

5
Investigators with the Fort Bend County Sheriff’s Office interviewed Fanny,

who was then an adult. The investigators had Fanny call Ali from her cell phone and

attempt to obtain a recorded confession from him, and the recording was entered into

evidence at trial and played to the jury. A transcript of the call was also admitted

into evidence. Fanny made the call while in the police station with investigators and

Lily present, although she told Ali she was alone when he voiced suspicion that other

people were listening in. Fanny repeatedly pressed Ali to promise to stop touching

her and her sisters and to accept responsibility for his actions. Although Ali

equivocated on his responses, Fanny testified that he did not deny the allegations

and he promised to stop touching the sisters.

Ali was indicted for three separate offenses.5 The most significant charge was

for the first-degree felony offense of aggravated sexual assault of Amy, who was

under fourteen years of age at the time of the offense. Ali was also charged with two

counts of indecency with a child by sexual contact, one count each for his conduct

towards Jenny and Fanny, respectively, who were both under the age of seventeen

at the time of the offenses. At trial, Lily, Fanny, Jenny, and Amy testified, as did the

director of the CAC and the investigating officer.

5
The appellate record indicates that Ali was charged in six separate indictments for
the offenses of continuous sexual abuse of a young child and indecency with a child.
The appeals at issue here concern only the three convictions discussed herein, and
the appellate record does not indicate the outcome of the remaining indictments.

6
A jury convicted Ali of each charge, and the trial court certified Ali’s right of

appeal.

During the punishment phase, Yvette, who was the youngest of the nine

children and fifteen years old at trial, testified that Ali had also sexually molested

her. She testified that two years earlier, when she was thirteen years old and in

seventh grade, Ali came into her bedroom one morning while she was still asleep

and touched her private areas over her clothing. She also testified that Ali touched

her on other occasions while the two of them were driving in the family car. Yvette

reported these incidents to Lily during the December 2019 family meeting after the

other sisters made outcries. Yvette was also interviewed by the CAC. Yvette was the

only witness to testify during the punishment phase.

Ali elected for the trial court to assess punishment. The court sentenced Ali to

thirty-five years’ imprisonment for the aggravated sexual assault conviction and ten

years’ imprisonment for each of the convictions for indecency with a child by sexual

contact, to run concurrently. Ali filed notices of appeal in each of the three cases.

Jury Charge

In a single issue in cause number 01-21-00604-CR—which is the appeal from

the conviction for indecency with Jenny by sexual contact—Ali contends that the

jury charge for this conviction erroneously contained an improper comment on the

weight of the evidence, which caused him egregious harm. Specifically, Ali argues

7
that the description of the State’s elected act omitted an “alleged” modifier, and

therefore constituted a comment on the weight of the evidence.

A. Standard of Review

We review a complaint of jury charge error regardless of whether error was

preserved. Gonzalez v. State, 610 S.W.3d 22, 27 (Tex. Crim. App. 2020); Kirsch v.

State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). Review of jury charge error

involves a two-step process. Kirsch, 357 S.W.3d at 649. First, we determine whether

the charge is erroneous. Id. If it is erroneous, then we analyze the error for harm. Id.

If the error was preserved with a timely objection, then the error is reversible if it

caused “some harm.” Gonzalez, 610 S.W.3d at 27.

But where, as here, the defendant did not object, the error is reversible only if

it caused the defendant “egregious harm.” Id. Errors resulting in egregious harm are

those that affect “the very basis of the case,” “deprive the defendant of a valuable

right,” or “vitally affect a defensive theory.” Id. (quoting Ngo v. State, 175 S.W.3d

738, 750 (Tex. Crim. App. 2005)). Under either harm standard, the appellant must

have suffered actual harm, not merely theoretical harm. Id. In determining whether

egregious harm is present, we review the entire record and consider four factors: the

entirety of the charge, the state of the evidence, the arguments to the jury, and any

other relevant information. Id.; French v. State, 563 S.W.3d 228, 235–36 (Tex. Crim.

App. 2018).

8
B. Governing Law

A trial court is required to issue 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, [and not] 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. art. 36.14; see Kirsch, 357 S.W.3d at 651. “The

purpose of the jury charge is to inform the jury of the applicable law and guide them

in its application to the case.” Beltran De La Torre v. State, 583 S.W.3d 613, 617

(Tex. Crim. App. 2019) (quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.

App. 1996)).

“A trial judge must maintain neutrality in providing such information and

guidance” to the jury and “may not express any opinion on the weight of the evidence

or draw the jury’s attention to particular facts.” Id. Article 36.14 “is designed to

prevent a jury from interpreting a judge’s comments as a judicial endorsement or

imprimatur for a particular outcome.” Id. An instruction “by the trial judge to the

jury on the weight of the evidence reduces the State’s burden of proving guilt beyond

a reasonable doubt to the jury’s satisfaction.” Brown v. State, 122 S.W.3d 794, 798

(Tex. Crim. App. 2003) (citation omitted).

A trial court generally should avoid including a non-statutory instruction in a

jury charge because such an instruction often constitutes an impermissible comment

9
on the weight of the evidence. Beltran De La Torre, 583 S.W.3d at 617. Even an

innocent attempt to provide clarity through a neutral instruction may be construed

as a comment on the weight of the evidence if the instruction “singles out a particular

piece of evidence for special attention,” which the jury may then interpret as

guidance from the presiding judge. Id. (quoting Rocha v. State, 16 S.W.3d 1, 20

(Tex. Crim. App. 2000)); see Bartlett v. State, 270 S.W.3d 147, 152 (Tex. Crim.

App. 2008) (stating that “seemingly neutral instruction” may constitute

impermissible comment on weight of evidence because instruction singles out

particular piece of evidence for “special attention”). “[S]pecial, non-statutory

instructions, even when they relate to statutory offenses or defenses, generally have

no place in the jury charge.” Beltran De La Torre, 583 S.W.3d at 617 (quoting

Walters v. State, 247 S.W.3d 204, 211 (Tex. Crim. App. 2007)). A non-statutory jury

instruction will generally constitute an impermissible comment when the instruction

“(1) is not grounded in the Penal Code, (2) is covered by the general charge to the

jury, and (3) focuses the jury’s attention on a specific type of evidence that may

support an element of an offense or a defense.” Id. (quoting Walters, 247 S.W.3d at

212).

The Texas Court of Criminal Appeals has identified “three specific

circumstances under which a trial court may single out a particular item of evidence

in the jury instruction without signaling to the jury an impermissible view of the

10
weight (or lack thereof) of that evidence.” Bartlett, 270 S.W.3d at 151. These three

circumstances are when:

1) the law directs the jury to attach “a certain degree of weight” or only a
particular or limited significance to a specific category or item of
evidence;
2) the law specifically identifies particular evidence as a predicate fact
from which a jury may presume the existence of an ultimate or
elemental fact; and
3) the admissibility of the evidence is contingent upon predicate facts that
are for the jury to decide.

Id. Singling out evidence beyond these three circumstances may impinge on the

jury’s independence in its essential role as factfinder. Id. “In determining whether

an instruction is a comment on the weight of the evidence, we must consider the

court’s charge as a whole.” Delapaz v. State, 228 S.W.3d 183, 212 (Tex. App.—

Dallas 2007, pet. ref’d).

C. Error Analysis

Ali challenges the language in the jury instruction concerning the State’s

election of the act to rely on for a conviction. The instruction stated:

You are instructed to consider only the act elected by the State in
deciding the guilt or innocence of the defendant in this indictment. The
act elected by the State is the one described by Jenny Ira (pseudonym)
when she was in middle school and shared a bedroom with Amy Ira, in
which the defendant caused his hand to contact the breast of Jenny Ira
(pseudonym), while the defendant was sitting on her bed and
masturbating. Testimony concerning any other offenses alleged to have
been committed by the defendant, if any, may not be considered for any
purpose whatsoever, unless those other offenses, if any, meet all the
requirements set out below in Paragraph V.

11
(Emphasis added.) Ali concedes that election language was necessary in the charge

in this case “to ensure jury unanimity” in reaching a verdict. He argues, however,

that the omission of any qualifying language, such as “alleged,” indicating that the

evidence was only an allegation, constituted an improper comment on the weight of

the evidence. Ali also argues that the omission of language qualifying the testimony

was highlighted by the very next sentence, which used two qualifiers when

addressing testimony about extraneous offenses.

A felony criminal conviction requires a unanimous verdict. TEX. CONST.

art. V, § 13; TEX. CODE CRIM. PROC. art. 36.29(a); Ngo, 175 S.W.3d at 745.

“Unanimity in this context means that each and every juror agrees that the defendant

committed the same, single, specific criminal act.” Ngo, 175 S.W.3d at 745; see de

la Luz Torres v. State, 570 S.W.3d 874, 880 (Tex. App.—Houston [1st Dist.] 2018,

pet. ref’d) (stating that unanimous verdict “means that the jury must agree upon a

single and discrete incident that would constitute the commission of the offense

alleged”); Francis v. State, 36 S.W.3d 121, 125 (Tex. Crim. App. 2000) (op. on

reh’g) (stating that unanimous jury verdict “ensures that the jury agrees on the factual

elements underlying an offense” and is “more than mere agreement on a violation of

a statute”).

“A non-unanimous verdict can occur when the State charges one offense and

presents evidence that the defendant committed that offense on multiple separate

12
occasions.” de la Luz Torres, 570 S.W.3d at 880. In a trial for a sexual offense, where

one act is alleged in an indictment and more than one act is shown by the evidence

to constitute a felony offense, the State must typically elect the act upon which it

will rely for a conviction. Garcia v. State, 614 S.W.3d 749, 753 (Tex. Crim. App.

2019); O’Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988). This election

requirement serves four purposes: (1) to protect the accused from the introduction

of extraneous offenses; (2) to minimize the risk that the jury might choose to convict

not because one or more crimes were proved beyond a reasonable doubt but because

all of them together convinced the jury that the defendant was guilty; (3) to ensure

unanimous verdicts on one specific incident; and (4) to give the defendant notice of

the particular offense the State intends to rely upon for prosecution and afford the

defendant an opportunity to defend against the charges. Phillips v. State, 130 S.W.3d

343, 349 (Tex. App.—Houston [14th Dist.] 2004), aff’d, 193 S.W.3d 904 (Tex.

Crim. App. 2006) (citing Fisher v. State, 33 Tex. 792, 794 (1870), Francis, 36

S.W.3d at 123–25, and O’Neal, 746 S.W.2d at 772–73).

The parties do not dispute that it was necessary to single out Jenny’s testimony

in the jury charge to inform the jury of the allegation that the State elected to proceed

upon for this charged offense. See Castro v. State, No. 03-19-00882-CR, 2021 WL

6141560, at *5 (Tex. App.—Austin Dec. 30, 2021, pet. ref’d) (mem. op., not

designated for publication) (“Although election language does not fall within the

13
categories enumerated in Bartlett, it is consistent with the Court of Criminal

Appeals’ objective in demarcating the exceptions” to commenting on weight of

evidence). We therefore assume without deciding that election language can be a

fourth circumstance in which a jury charge may permissibly single out evidence

without improperly commenting on that evidence. See Bartlett, 270 S.W.3d at 151.

The issue is whether the omission of a modifying term, such as “alleged,” when

referring to Jenny’s testimony rendered the reference an impermissible comment on

the weight of the evidence.

Ali relies primarily on Castro to argue that “[s]imilar language that simply

referred to specific testimony of the complainant but failed to include any qualifiers,

such as ‘alleged,’ has been found to be error.” In Castro, a defendant was convicted

of seven counts of indecency with a child by sexual contact and two counts of sexual

assault of a child. See 2021 WL 6141560, at *1. The jury charge identified each

count of indecency with a child by the relevant testimony of the complainant. Id. For

example, one count stated, “This count refers to the testimony of M.C. regarding

breast touching in the small house.” Id. at *1 n.2. The defendant argued that the

inclusion of election language in the charge constituted an improper comment on the

weight of the evidence, in part because it omitted the term “alleged” as a modifier

of the conduct. Id. at *4, 6. The court noted that the charge included the qualifying

term “regarding” or “in regards to,” although it did not consider whether such terms

14
were necessary. Id. at *6. Nevertheless, the court concluded that the election

language constituted an improper comment on the weight of the evidence not

because it omitted a modifier but because it “explicitly and repeatedly referr[ed] to

the testimony of the complainant—the sole witness to testify about the facts

underlying the charges,” and the trial court therefore “influenced the State’s burden

and engaged in the very conduct proscribed by Article 36.14.” Id.

Thus, Castro did not hold that it was error to simply refer to specific testimony

in jury charge election language without a qualifying term. The error in Castro was

the explicit and repeated references to the evidence in the jury charge, not the

omission of a qualifying term. Therefore, Castro does not support Ali’s argument.

Ali also relies on Vickery v. State, in which the defendant challenged the

following election language in a jury charge:

The State has elected to proceed on the conduct described by [J.D.T.]
as the first time the defendant is alleged to have touched the genitals of
[J.D.T.] by grabbing them with his hand occurring while [J.D.T.]
resided at the residence on Jet Street and was 8 or 9 years of age.

See No. 02-04-00422-CR, 2005 WL 2244730, at *6 (Tex. App.—Fort Worth 2005,

pet. ref’d) (per curiam) (mem. op., not designated for publication). The defendant

argued that this language impermissibly commented on the weight of the evidence

because it stated that the “the conduct . . . occur[red]” rather than “the conduct, if

any, . . . which allegedly occurred.” Id. The court disagreed, stating that the

challenged sentence included the modifying term “alleged,” which acted “as a
15
modifier of the entire descriptive phrase—the ‘conduct’ to which J.D.T. testified.”

Id. Vickery did not consider whether the election language required the use of a

modifier or whether the language without the modifier would have constituted an

impermissible comment on the weight of the evidence. Id. At best, Vickery supports

an argument that modifying terms can cure otherwise improper election language.

Because the opinion does not address the issue presented here, Vickery offers little

guidance in this case.

The State relies on Hathorn v. State to argue that the omission of modifying

terms “alleged” and “if any” does not render a jury instruction an improper comment

on the weight of the evidence. See 848 S.W.2d 101 (Tex. Crim. App. 1992). There,

the defendant was charged with capital murder for killing his father and other family

members for remuneration, specifically an early inheritance from his father’s estate.

Id. at 105–06, 113–14. The jury charge referred to the estate without describing it as

an alleged estate, which the defendant argued impermissibly commented on the

weight of the evidence because it assumed the existence of the estate. Id. at 113. The

challenged portion of the charge read:

Now if you believe from the evidence beyond a reasonable doubt that
the defendant, Gene Wilford Hathorn, Junior, on or about the ninth day
of October, 1984, in Trinity County, Texas, did intentionally cause the
death of an individual, Gene Hathorn, Sr., by shooting him with a gun
and you further find that said Gene Wilford Hathorn, Junior, did cause
the death of Gene Hathorn, Sr., for the promise of remuneration, to wit:
The Estate of Gene Hathorn, Sr., then you will find the defendant, Gene

16
Wilford Hathorn, Junior, guilty of capital murder as charged in Count 2
of the indictment.

Id. at 113–14. The Court of Criminal Appeals concluded that the reference to the

father’s estate was not a comment on the weight of the evidence at all. Id. at 114.

The court reasoned that remuneration was an element of the charged capital murder

offense, and therefore the reference to the estate in the jury charge was intended to

request a finding on whether the State proved a necessary element of the offense. Id.

Because the reference to the estate was not an impermissible comment on the weight

of the evidence, it was unnecessary to include the modifying terms “alleged” or “if

any” in the instruction. Id. In a partially unpublished opinion, this Court has

interpreted Hathorn as implying that, “had the charge been a comment on the weight

of the evidence, the inclusion of the words ‘if any’ would have cured the error.” Blok

v. State, 986 S.W.2d 389, 391 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (op.

on reh’g) (citing Hathorn, 848 S.W.2d at 114); see also Mattox v. State, 874 S.W.2d

929, 933–34 (Tex. App.—Houston [1st Dist.] 1994, no writ) (concluding that use of

term “aggravated assault” in charge without any word of limitation, such as “if any,”

constituted impermissible comment on weight of evidence under article 36.14).

In this case, the election language specifically referenced Jenny’s testimony

without any modifying terms such as “alleged.” Although the allegations are

prefaced as Jenny’s testimony, the allegations read as if they affirmatively occurred:

“[Ali] caused his hand to contact the breast of Jenny Ira (pseudonym), while [Ali]
17
was sitting on her bed and masturbating.” This language called attention to particular

evidence: Jenny’s testimony. But “[e]ven a judge’s innocent attempt to provide

clarity for the jury by including a neutral instruction can result in an impermissible

comment on the weight of the evidence because the instruction singles out a

particular piece of evidence for special attention, which the jury may then focus on

as guidance from the judge.” Beltran De La Torre, 583 S.W.3d at 617 (quotations

omitted).

Moreover, these facts are the only facts referenced in the entire jury charge.

See Delapaz, 228 S.W.3d at 212 (stating that reviewing court considers charge as

whole in determining whether particular instruction is comment on evidence). Even

if inclusion of the language was an innocent and necessary attempt to clarify the

State’s elected act, the jury reasonably could have interpreted the singling out of this

sole evidence without any modifying language as guidance from the judge in

reaching a verdict. See Beltran De La Torre, 583 S.W.3d at 617; Joung Youn Kim v.

State, 331 S.W.3d 156, 160 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d)

(plurality op.) (stating that trial judge improperly comments on weight of evidence

by making statement that implies approval of State’s argument, indicates disbelief

in defensive position, or diminishes credibility of defensive strategy). Under the

circumstances presented in this case, we agree that the trial court erred by referring

18
to the elected act without a modifying term such as “alleged.” See Beltran De La

Torre, 583 S.W.3d at 617; Blok, 986 S.W.2d at 391; Mattox, 874 S.W.2d at 933–34.

D. Harm Analysis

Although error exists in the jury charge, we disagree that the error caused Ali

egregious harm. See Gonzalez, 610 S.W.3d at 27 (stating that unpreserved jury

charge error is reversible only if it caused “egregious harm”). To result in egregious

harm, an error must affect “the very basis of the case,” “deprive the defendant of a

valuable right,” or “vitally affect a defensive theory.” Id. (quoting Ngo, 175 S.W.3d

at 750). The appellant must have suffered actual harm, not merely theoretical harm.

Id. “Egregious harm is a ‘high and difficult standard’ to meet, and such a

determination must be ‘borne out by the trial record.’” Villarreal v. State, 453

S.W.3d 429, 433 (Tex. Crim. App. 2015) (quoting Reeves v. State, 420 S.W.3d 812,

816 (Tex. Crim. App. 2013)).

In determining whether egregious harm is present, we review the entire record

and consider four factors: the entirety of the charge, the state of the evidence, the

arguments to the jury, and any other relevant information. Gonzalez, 610 S.W.3d at

27; French, 563 S.W.3d at 235–36. In some circumstances, a single consideration

may suffice to establish that the risk of harm is so minimal that the harm is not

egregious. Gonzalez, 610 S.W.3d at 27. Our analysis is fact specific and conducted

19
on a case-by-case basis. Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App.

2015).

1. Entirety of the Charge

Ali’s argument on appeal focuses solely on the inclusion of the erroneous

unmodified election language in the jury charge, which Ali contends “related to the

only contested issue of fact at trial”: whether the incident occurred. The State

responds that this was not a contested issue because the only contradictory evidence

presented at trial was Ali’s statement that the incident was a misunderstanding.

Further, the State argues that it was necessary to include the election language in the

jury charge, and the charge also instructed the jury that it was the sole factfinder,

including on issues of witness credibility and the weight to be given to witness

testimony.

The disputed election language in the charge contained the entire act elected

by the State for conviction in this case. Regardless of whether contradictory evidence

existed in the record, Ali pleaded not guilty to the charge, thereby putting the State

to its burden of proof. We agree with Ali that this language relates to the only dispute

at trial on this cause number: whether the elected incident occurred. Furthermore,

we note that these are the only facts referenced in the jury charge, which emphasizes

their presence.

20
Nevertheless, in the context of the entire jury charge, this factor weighs

against a finding of egregious harm. Each charged offense was contained in a

separate jury charge, and the jury charge in this case set forth the elements of the

offense of indecency with a child by sexual contact. The charge detailed the State’s

burden to prove the offense beyond a reasonable doubt. The charge also referred

generally to “the offense, if any,” that “is alleged in the indictment to have been

committed . . . .” Finally, the charge instructed the jurors that they were “the

exclusive judges of the facts proved, of the credibility of the witnesses, and of the

weight to be given to the testimony,” and that the jury was “bound to receive the law

from the Court.” Furthermore, in the preface to the paragraph concerning the State’s

elected act, the charge informed the jury that the “State has presented evidence of

more than one incident to prove the act alleged.”

The charge used modifying terms, as Ali argues it should have, just not when

specifically referring to Jenny’s testimony as the elected act. Thus, the jury charge

as a whole properly instructed the jury that the State had the burden to prove its

allegations, which significantly minimizes the effect of omitting modifying terms in

the election language specifically. This factor weighs heavily in favor of a finding

that Ali was not egregiously harmed by the jury charge. See Gonzalez, 610 S.W.3d

at 27 (stating that “a single consideration may persuade us that the risk of harm is so

minimal that it precludes a finding of egregious harm”).

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2. State of the Evidence

Under this factor, we consider the state of the evidence to determine whether

the evidence made it more or less likely that the jury charge caused actual harm.

Arrington, 451 S.W.3d at 841. Ali argues that the only evidence of the offense in

this case was Jenny’s testimony, a “specific portion” of which was emphasized in

the jury charge. The State responds that other evidence of this offense exists in the

record, including testimony from Amy, who shared a bedroom with Jenny, about

similar acts Ali committed against her. The State also points to a transcript of a

telephone conversation between Jenny and Ali in which Ali agreed to stop touching

Jenny and her sisters, did not accuse Jenny of lying, and did not deny the accusations.

At trial, Jenny testified about a time when Ali came into her and Amy’s shared

bedroom in the middle of the night, sat on her bed, and masturbated while touching

her inappropriately over her clothes. Jenny testified that she knew it was Ali because

of his clothing. The State also introduced and played the recording of the telephone

conversation between Jenny and Ali, in which Jenny repeatedly pressed Ali to

acknowledge and apologize for inappropriately touching her and her sisters. Ali

raised suspicions that others were listening in on the phone call. He repeatedly

apologized, but his apologies were ambiguous. For example, he would say, “I say

everything sorry. Everything. If I—if I hit you and if I—I touch you like, . . .

something wrong. All—all of this, I’m sorry.” He even denied touching “anybody”

22
at one point. But Ali did respond “Yes” when Jenny asked him, “So, you promise to

stop touching us, right?” At the end of the conversation, Ali said, “I say I promise

God willing. . . . I promise I stop everything. I all [sic] mistake. I will stop[.]”

On the recording, Ali did not unequivocally admit to touching any of the Ira

sisters inappropriately, and he certainly did not unequivocally admit to masturbating

while touching Jenny in her bedroom at night, which is part of the State’s elected

act. Nevertheless, the jury charge informed the jury that it was the sole factfinder,

and the jury reasonably could have concluded from the audio recording that Ali

admitted to some inappropriate touching. See Williams v. State, 235 S.W.3d 742,

750 (Tex. Crim. App. 2007) (stating that reviewing court may not reevaluate weight

and credibility of evidence and thereby substitute court’s judgment for that of

factfinder); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (stating that

reviewing court must give deference to “the responsibility of the trier of fact to fairly

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts”) (quoting Jackson v. Virginia, 443 U.S.

307, 318–19 (1979)). Because evidence of the offense other than Jenny’s testimony

existed, it is less likely that the reference to Jenny’s testimony in the charge actually

caused Ali harm. See Arrington, 451 S.W.3d at 841.

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3. Arguments to the Jury

Ali argues that the State argued to the jury that all of the acts about which

Jenny testified would support a conviction for the offense, despite the State’s

election, and the State incorrectly argued that the elected act occurred in the summer

between Jenny’s fifth and sixth grade years rather than “throughout middle and high

school years.” Ali further argues that the State confused the various incidents by

arguing that Jenny knew it was Ali touching her because he had done other similar

acts. According to Ali, the State’s arguments made it “impossible for the jury to

parse out that the court’s instruction referred simply to an allegation and not the

court’s opinion regarding the truthfulness of the testimony.”

Under this factor, we consider whether any statements made by the State, Ali,

or the court during trial exacerbated or ameliorated error in the charge. See id. at

843; Ngo, 175 S.W.3d at 750–52 (finding egregious harm when jury charge did not

contain unanimity instruction and trial judge and prosecutor repeatedly told jury that

verdict need not be unanimous). We disagree that the State’s challenged arguments

exacerbated the comment in the jury charge. Initially, we note that Ali’s primary

argument is that the trial court erred by impermissibly commenting on the weight of

the evidence in the jury charge, yet Ali relies solely on the State’s arguments under

this factor. We do not agree that these arguments by the State exacerbated any

perception by the jury of the court’s view of the evidence.

24
To the contrary, as the State points out, the charge instructed the jury on

extraneous offenses and the limited purposes for which the jury may consider acts

other than the elected act. Our review of the appellate record does not reveal any

argument that exacerbated or ameliorated the challenged election language in the

charge. See Arrington, 451 S.W.3d at 843. Thus, this factor is neutral.

4. Other Relevant Information

Ali argues that he was tried for three separate offenses in a single trial, which

imposed upon the jury the “unenviable task” of delineating the evidence that

properly could be considered for each charge from the evidence of extraneous

offenses and the purposes for which such evidence could be considered. According

to Ali, referring to Jenny’s testimony in the charge lessened the State’s burden of

proof and confused the jury.

Although the jury’s task was complicated by having to consider three separate

offenses in a single trial and having to parse through the evidence and consider it for

certain purposes—either as evidence of a specific charged offense or evidence of an

extraneous offense—we disagree that this factor supports a finding of egregious

harm. The charge explained the meaning of extraneous offense evidence and

clarified the uses for which it could be considered. The election language also

clarified the difference in the types of evidence that the jury properly could consider.

Thus, the other relevant information relied upon by Ali does not support his

25
argument that he suffered egregious harm due to the trial court’s impermissible

comment on the weight of the evidence.

Based on our review of the entire record and consideration of these factors,

we conclude that the charge error did not cause Ali egregious harm. See Gonzalez,

610 S.W.3d at 27. We overrule Ali’s sole’s issue in appellate cause number 01-21-

00604-CR.

Anders Procedures

In appellate cause numbers 01-21-00605-CR and 01-21-00607-CR, Ali’s

appointed counsel on appeal has filed a motion to withdraw, along with a brief

stating that the records in these two appeals present no reversible error and, therefore,

these two appeals are without merit and are frivolous. See Anders v. California, 386

U.S. 738 (1967). The State filed a letter brief waiving its right to file an appellate

brief in these two appeals.

Counsel’s brief meets the Anders requirements by presenting a professional

evaluation of the appellate records and including references to the records and to

legal authority. See id. at 744–45; see also High v. State, 573 S.W.2d 807, 812, 813

(Tex. Crim. App. 1978). Counsel indicates that she has thoroughly reviewed the

records in these two appeals and is unable to advance any ground of error in either

appeal that warrants reversal. See Anders, 386 U.S. at 744; Mitchell v. State, 193

S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

26
Counsel mailed a copy of the motion to withdraw and the Anders brief to Ali

and informed him of his right to file a response and to access the appellate records.

See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008) (orig. proceeding).

Ali did not request access to the appellate records or file a pro se response in either

appeal. See id. at 408–09.

The Court has independently reviewed the records in these two appeals, and

we conclude that no reversible error exists in the record in either appeal, there are

no arguable grounds for review in either appeal, and the two appeals are frivolous.

See Anders, 386 U.S. at 744 (emphasizing that reviewing court—and not counsel—

determines, after full examination of proceedings, whether appeal is wholly

frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing

court must determine whether arguable grounds for review exist); Bledsoe v. State,

178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (reviewing court is not to address

merits of each claim raised in Anders brief or pro se response after determining there

are no arguable grounds for review); Mitchell, 193 S.W.3d at 155–56. An appellant

may challenge a holding that there are no arguable grounds for appeal by filing a

petition for discretionary review in the Texas Court of Criminal Appeals. See

Bledsoe, 178 S.W.3d at 827 & n.6.

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Conclusion

The Court affirms the judgment of the trial court in these three appeals. See

TEX. R. APP. P. 43.2(a). The Court further grants counsel’s motion to withdraw in

appellate cause numbers 01-21-00605-CR and 01-21-00607-CR.6 Attorney Mandy

Miller must immediately send the required notice and file a copy of the notice with

the Clerk of this Court. See TEX. R. APP. P. 6.5(c). We dismiss any other pending

motions as moot.

April L. Farris
Justice

Panel consists of Justices Kelly, Landau, and Farris.

Do not publish. TEX. R. APP. P. 47.2(b).

6
Appointed counsel still has a duty to inform Ali of the result of these appeals and
that he may, on his own, pursue discretionary review in the Texas Court of Criminal
Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).

28

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9392889. Public record. Not legal advice.