Johnathan Leland Estes v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-23-00262-CR

Johnathan Leland Estes,
Appellant

v.

The State of Texas,
Appellee

On appeal from the
54th District Court of McLennan County, Texas
Judge E. Alan Bennett, presiding
Trial Court Cause No. 2021-462-C2

CHIEF JUSTICE JOHNSON delivered the opinion of the Court.

MEMORANDUM OPINION

Appellant Johnathon Estes was indicted on three counts of aggravated

sexual assault of a child and three counts of indecency with a child by contact.

See TEX. PENAL CODE ANN. §§ 21.11, 22.021. A jury found Estes guilty on two

counts of aggravated sexual assault of a child and two counts of indecency with

a child by contact and acquitted Estes on one count of aggravated sexual

assault of a child and one count of indecency with a child by contact. The jury
assessed his punishment at fifteen years’ confinement on both counts of

aggravated sexual assault of a child and five years’ confinement on both counts

of indecency with a child by contact. The trial court sentenced Estes

accordingly and ordered the sentences to run consecutively. In three issues,

Estes argues that the trial court erred in charging the jury and that the written

judgments of conviction incorrectly state that he entered a plea of guilty to each

offense. We will modify the judgments and affirm as modified.

A. Background

Because there is no challenge to the sufficiency of the evidence, we will

summarize the underlying facts only briefly. Estes lived with C.C. 1 and C.C.’s

mother and brother. When C.C. was twelve years old, she told friends at school

that something had happened with Estes the night before. The friends

reported what happened to a teacher’s aide who then took C.C. to see the school

counselor. C.C. told the school counselor that Estes came into her bedroom the

previous night and exposed his privates to her. C.C. also said that Estes had

touched her chest on another occasion over her clothes. The school counselor

notified the school resource officer and the Texas Department of Family and

Protective Services (the Department) about the allegations.

1
We use initials to protect the complainant’s identity.

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An investigator with the Department interviewed C.C. the following day.

C.C. told the investigator that Estes touched her breasts and vagina

underneath her clothes. C.C. then underwent a forensic interview at the

Advocacy Center for Crime Victims and Children. At that interview, she stated

that Estes made her touch his penis and that Estes touched her breasts and

vagina. C.C. stated that it had happened recently and that it had happened

on more than one occasion.

C.C. was later examined by a pediatrician at the Advocacy Center for

Crime Victims and Children. During the medical exam, C.C. described that

Estes had exposed himself to her and that he put his penis in her mouth and

also in her vagina. C.C. also said that Estes put his finger inside of her vagina

and put his mouth on her breasts.

C.C. testified at trial that Estes put his penis inside of her mouth and

her vagina on more than one occasion. She further testified that he touched

her breasts with his mouth and his hands. Estes testified at trial that none of

C.C.’s allegations were true.

B. Issues One and Two

In his first issue, Estes argues that the trial court’s instruction on

extraneous offenses was erroneous. In his second issue, he contends that the

trial court erred in submitting an instruction on voluntary intoxication.

Estes v. State Page 3
1. Authority

“Appellate review of claims of jury-charge error first involves a

determination of whether the charge was erroneous and, if it was, then second,

an appellate court conducts a harm analysis, with the standard of review for

harm being dependent on whether error was preserved for appeal.” Cortez v.

State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). If the error was preserved

by objection, any error that is not harmless will constitute reversible error.

Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015).

If there was no objection to the error, a reversal is only required if the

error presents egregious harm, meaning that the appellant did not receive a

fair and impartial trial. Reed v. State, 680 S.W.3d 620, 625–26 (Tex. Crim.

App. 2023). “Jury charge error is egregiously harmful if it affects the very basis

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

defensive theory.” Id. at 626. “In determining whether charge error resulted

in egregious harm, we consider: (1) the entire jury charge; (2) the state of the

evidence; (3) the final arguments of the parties; and (4) any other relevant

information revealed by the trial court as a whole.” Id.

2. Discussion

Estes first argues that the trial court applied an evidentiary provision

from the Texas Code of Criminal Procedure that was not applicable in his case.

Estes v. State Page 4
The State gave notice of its intent to offer evidence that Estes had exposed his

penis to C.C. Because Estes was not charged with indecent exposure, the

evidence was an extraneous offense. Section 1(b) of Article 38.37 of the Texas

Code of Criminal Procedure provides:

(b) Notwithstanding Rules 404 and 405, Texas Rules of Evidence,
evidence of other crimes, wrongs, or acts committed by the
defendant against the child who is the victim of the alleged offense
shall be admitted for its bearing on relevant matters, including:

(1) the state of mind of the defendant and the child; and
(2) the previous and subsequent relationship between the
defendant and the child.

TEX. CODE CRIM. PROC. ANN. art. 38.37 § 1(b). Section 2(b) of Article 38.37

states:

(b) Notwithstanding Rules 404 and 405, Texas Rules of Evidence,
and subject to Section 2-a, evidence that the defendant has
committed a separate offense described by Subsection (a)(1) or (2)
may be admitted in the trial of an alleged offense described by
Subsection (a)(1) or (2) for any bearing the evidence has on
relevant matters, including the character of the defendant and acts
performed in conformity with the character of the defendant.

Id. at § 2(b).

In the case before us, the trial court instructed the jury as follows:

You are instructed that if there is any testimony before you in this
case regarding [Estes] having committed any offenses, if any,
against the alleged victim,[C.C.], other than the offenses alleged
against him in the indictment in this case, you cannot consider said
testimony for any purpose unless you find and believe beyond a
reasonable doubt that [Estes] committed such other offenses, if any
were committed, and then you may consider the same for its

Estes v. State Page 5
bearing on any relevant matters, including the character of [Estes]
and acts performed in conformity with the character of [Estes], if
any, in connection with the offenses, if any, alleged against him in
the indictment in this case.

Because Estes did not object to the trial court’s instruction, we will reverse only

if any error resulted in egregious harm. See Reed, 680 S.W.3d at 625–26.

Estes specifically argues that the trial court’s instruction erroneously

included the language from Article 38.37 Section 2(b) rather than Section 1(b).

He maintains that Section 2(b) is not applicable to his case because the State

introduced evidence of other sex crimes committed against C.C. and Section

2(b) applies only if the State is attempting to introduce evidence of other sex

crimes committed against children other than the victim.

Estes does not complain that the extraneous offense of indecent exposure

was inadmissible. Rather, he contends that the trial court’s erroneous

instruction allowed the jury to consider the extraneous offense for any relevant

matters, including conformity with his character, rather than limiting its

consideration to his and C.C.’s state of mind and the previous and subsequent

relationship between them as required by Section 1(b) of Article 38.37.

The State argues that evidence of extraneous offenses may be admissible

under both Article 38.37 Sections 1(b) and 2(b) citing Zepeda v. State as

authority. No. 09-21-00230-CR, 2024 WL 105319 (Tex. App.—Beaumont Jan.

10, 2024, no pet.) (mem. op. not designated for publication). In Zepeda, the

Estes v. State Page 6
defendant was convicted for the continuous sexual abuse of two sisters. Id. at

*1. At trial, one of the sisters testified about extraneous offenses the defendant

had committed against her. Id. at *8. On appeal, the Court held that the

testimony was admissible under both Section 1(b) and Section 2(b) of Article

38.37. Id. at *10. Estes maintains that Zepeda is inapposite because the

defendant in that case was charged with the offense of continual sexual abuse

of two children.

In Zepeda, the Court was called upon to determine the admissibility of

the extraneous offense under Article 38.37 and concluded that it was

admissible under both sections 1(b) and 2(b). Id. Estes acknowledges that the

evidence of indecent exposure was admissible under Article 38.37 Section 1(b)

and complains only that Section 2(b) is inapplicable. Based upon Zepeda, we

cannot conclude that Section 2(b) is inapplicable. Id. Moreover, because we

are not determining the admissibility of the evidence, we need not decide

whether Section 2(b) is applicable.

Estes complains that the trial court’s charge erroneously allowed the

jury to consider the evidence for its bearing on any relevant matter, including

his character. Because he did not object to the trial court’s charge, we will only

reverse if the error, if any, resulted in egregious harm. Reed, 680 S.W.3d at

625–26.

Estes v. State Page 7
There is no evidence that the instruction deprived Estes of a valuable

right. Id. at 626. Because Estes’s defensive theory was that he did not commit

any of the charged offenses or extraneous offenses, the instruction did not

affect his defensive theory. The jury was instructed they could only consider

the evidence if they found beyond a reasonable doubt that Estes committed the

extraneous offenses. We presume the jury followed the trial court’s instruction.

See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). Estes was

acquitted on one count of aggravated sexual assault of a child and one count of

indecency with a child by contact which further indicates that the instruction

did not deprive Estes of a valuable right. After reviewing the entire jury

charge, the state of the evidence, and the final arguments, we conclude that

Estes did not suffer egregious harm from any error in the trial court’s

instruction to the jury. We overrule his first issue.

Estes next argues that the trial court erred in submitting a voluntary

intoxication instruction in the jury charge because there was no evidence he

was intoxicated at the time of the complained-of conduct. The trial court

instructed the jury as follows:

Our law provides that voluntary intoxication does not
constitute a defense to the commission of a crime.
“Intoxication” means not having the normal use of mental or
physical faculties by reason of the introduction of alcohol, a
controlled substance, a drug, a dangerous drug, a combination of

Estes v. State Page 8
two or more of those substances, or any other substance into the
body, or having an alcohol concentration of 0.08 or more.

Estes objected to the inclusion of the instruction on voluntary intoxication.

Therefore, any error that is not harmless will constitute reversible error. Price,

457 S.W.3d at 440.

A voluntary intoxication instruction is appropriate if evidence is

introduced which might lead the jury to believe that the defendant was

intoxicated at the time of the offense and that his intoxication might have

contributed to his lack of knowledge of the offense. Taylor v. State, 885 S.W.2d

154, 158–59 (Tex. Crim. App. 1994). Estes argues that there was no evidence

he was intoxicated at the time of the complained-of conduct.

There was evidence presented at trial that during her interview with the

Department investigator, C.C. said that Estes likes to drink a lot. Estes

testified at trial that he had suffered from alcoholism since October 2020, and

the complained-of offenses were alleged to have occurred in October 2020. A

defendant does not have to rely upon intoxication as a defense in order for there

to be an instruction on voluntary intoxication. Id. at 158. Although slight,

there was some evidence which might lead a jury to believe that Estes was

intoxicated at the time of the offense. Id. Therefore, the trial court did not err

by instructing the jury on voluntary intoxication.

Estes v. State Page 9
Moreover, even if the trial court erred, the record must show “some

harm” to warrant a reversal. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim.

App. 2005). The “some harm” standard requires error that is “calculated to

injure the rights of the defendant. See Barrios v. State, 283 S.W.3d 348, 350

(Tex. Crim. App. 2009) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1985) (op. on reh’g)), overruled on other grounds by Sandoval v.

State, 665 S.W.3d 496 (Tex. Crim. App. 2022). There must be some actual

harm, not merely theoretical harm, to obtain a reversal. Reed, 680 S.W.3d at

626.

There is no evidence that any error was calculated to injure Estes’s

rights. See Barrios, 283 S.W.3d at 350. The state of the evidence supports a

finding that Estes was not harmed by the inclusion of the instruction. C.C.

testified that Estes put his penis in her mouth and in her vagina and that he

touched her breasts with his mouth and his hands. Her testimony was

supported by her previous interviews with the Department and the medical

examiner. In addition, neither the State nor Estes’s trial counsel discussed

intoxication during closing arguments. Estes was acquitted on one count of

aggravated sexual assault of a child and one count of indecency with a child by

contact which further indicates that Estes did not suffer harm from the

instruction.

Estes v. State Page 10
Estes contends that the instruction improperly called attention to a fact

not in evidence and served only to communicate that the trial court believed

he had been intoxicated. However, there is no evidence of actual harm from

the instruction. See id. Therefore, even if the trial court erred in instructing

the jury on voluntary intoxication, we conclude that Estes was not harmed by

any error. We overrule the second issue.

C. Issue Three

In his third issue, Estes argues that each of the judgments of conviction

incorrectly state that he pleaded guilty to the charged offenses. The State

concedes that each of the four judgments of conviction erroneously state that

Estes pleaded guilty to the offenses and agrees that the judgments should be

modified to reflect that Estes pleaded not guilty to each offense.

An appellate court has the authority to reform a judgment to speak the

truth when it has the information to do so. TEX. R. APP. P. 43.2(b); see also

Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Therefore, we

modify each of the judgments to reflect that Estes pleaded not guilty to the

charged offenses. We sustain Estes’s third issue.

D. Conclusion

Because we overruled Estes’s first and second issue and sustained his

third issue, we modify each of the judgments to reflect that Estes entered a

Estes v. State Page 11
plea of not guilty to the charged offenses, and we affirm the judgments as

modified.

MATT JOHNSON
Chief Justice

OPINION DELIVERED and FILED: July 24, 2025
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed as modified
Do not publish
CRPM

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