Paul Gonzalez, Jr. v. the State of Texas

Opinion filed June 13, 2024

In The

Eleventh Court of Appeals
__________

No. 11-22-00117-CR
__________

PAUL GONZALEZ, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 118th District Court
Martin County, Texas
Trial Court Cause No. 1763

MEMORANDUM OPINION
Appellant was indicted for the offense of continuous sexual abuse of a child,
a first-degree felony. See TEX. PENAL CODE ANN. § 21.02(b), (c), (h) (West Supp.
2023). The jury convicted Appellant of the charged offense and assessed his
punishment at seventy-five years’ imprisonment in the Institutional Division of the
Texas Department of Criminal Justice.
Appellant raises two issues on appeal: the trial court erred when it (1) did not
orally pronounce Appellant’s sentence in open court and in his presence, and
(2) failed to properly limit in its charge the definitions of the culpable mental states
that apply to the offense for which Appellant was convicted.1 We affirm.
I. Factual Background
Because Appellant does not challenge the sufficiency of the evidence to
support his conviction, we only recite the facts that are necessary to address the
issues that he has raised on appeal.
The indictment alleged that A.A. was the victim of the charged offense. On
November 29, 2018, A.A. was examined by Dr. Khadijah Abdurrazaq, who
confirmed that A.A. was pregnant; she was fourteen years old at the time and it was
projected that her pregnancy was advanced (approximately thirty-two weeks
gestation). A.A.’s mother, L.A., was present during Dr. Abdurrazaq’s examination.
On December 3, 2018, A.A. and L.A. reported A.A.’s situation to Officer Joe Robert
Morales of the Stanton Police Department. During their meeting with Officer
Morales, A.A. and L.A. advised that they believed Appellant was the father of A.A.’s
unborn child. To determine paternity, DNA samples were subsequently obtained
from Appellant, A.A., and A.A.’s child.

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Appellant’s first court-appointed appellate counsel submitted an Anders brief and filed a motion
to withdraw. See Anders v. California, 386 U.S. 738 (1967). Following the procedures set forth in Anders,
Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014), and In re Schulman, 252 S.W.3d 403 (Tex. Crim.
App. 2008), we independently reviewed the record and concluded that this appeal was not particularly
amenable to disposition under Anders. We also noted that, contrary to Appellant’s assertion, he was
sentenced by the trial court in accordance with the mandates of Article 42.03 of the Texas Code of Criminal
Procedure. See TEX. CODE CRIM. PROC. ANN. art. 42.03, § 1(a) (West Supp. 2023). However, the record
of Appellant’s sentencing hearing was not submitted to us with the original reporter’s record.
Accordingly, we granted counsel’s motion to withdraw, abated this appeal, and remanded this cause
to the trial court with instructions to appoint other appellate counsel. New appellate counsel was directed
to file a brief on the merits and address any substantive issues that appellate counsel deemed to be arguable.
Further, we directed the clerk and the court reporter for the 118th District Court to submit the record of
Appellant’s sentencing hearing to us. This appeal was reinstated after the trial court appointed new
appellate counsel and the record of Appellant’s sentencing hearing was received.

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The DNA samples were tested by Farah Plopper, a forensic DNA analyst with
the University of North Texas Center for Human Identification in Fort Worth. The
DNA test results showed that Appellant could not be excluded as the child’s
biological father—99.9999991 percent of the male population was excluded
indicating that a 0.0000009 percent chance existed that a person other than Appellant
was the child’s father. Based on the DNA test results, and other information
obtained by law enforcement during their investigation, Appellant was later indicted
for the continuous sexual abuse of A.A.
At trial, A.A. and L.A. testified and described that several incidents of alleged
sexual abuse had occurred between Appellant and A.A. from 2013 to 2018. Despite
the DNA test results, which Appellant could not and did not refute, he denied that
he ever had any form of sexual contact with A.A.
II. The Pronouncement of Appellant’s Sentence
In his first issue, Appellant contends that the trial court erred because it did
not pronounce Appellant’s sentence in open court and in his presence. The State
responds that Appellant was, in fact, sentenced in accordance with the requirements
of Article 42.03. We agree with the State.
The trial court must orally pronounce the sentence to be imposed against the
defendant in the defendant’s presence. See CRIM. PROC. art. 42.03, § 1(a); Taylor v.
State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). Here, the trial court orally
pronounced Appellant’s sentence in his presence, and in open court, after the
underlying trial of this case had concluded. Accordingly, we overrule Appellant’s
first issue because it is now moot. See Sherman v. State, No. 11-19-00190-CR, 2022
WL 2839201, at *1 (Tex. App.—Eastland July 21, 2022, no pet.) (mem. op., not
designated for publication) (citing Diaz v. State, No. 13-14-00675-CR, 2017
WL 4987665, at *10 (Tex. App.—Corpus Christi–Edinburg Nov. 2, 2017, pet. ref’d)
(mem. op., not designated for publication)).
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III. The Culpable Mental State Definitions
In his second issue, Appellant contends that the trial court failed to properly
define and restrict the culpable mental states that apply to the offense of continuous
sexual abuse of a child.
The Penal Code defines four separate culpable mental states—intentionally,
knowingly, recklessly, and criminally negligent. See PENAL § 6.03 (West 2021).
“‘[T]he scope of those culpable mental states is limited by the type of offense [that
is charged],’ which depends on the ‘conduct element.’” Campbell v. State, 664
S.W.3d 240, 245 (Tex. Crim. App. 2022) (quoting Cook v. State, 884 S.W.2d 485,
487 (Tex. Crim. App. 1994)). “There are three ‘conduct elements:’ (1) nature of
[the] conduct; (2) result of [the] conduct; and (3) the circumstances surrounding the
conduct.” Id. (quoting McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App.
1989)); see also Young v. State, 341 S.W.3d 417, 423 (Tex. Crim. App. 2011). An
offense may contain any one or more conduct elements that alone or in combination
form the overall behavior that the legislature intended to criminalize, and it is these
essential conduct elements to which a culpable mental state must apply. McQueen,
781 S.W.2d at 603. A trial court errs when it fails to limit in its charge the
definition(s) of the applicable culpable mental state(s) to the conduct element or
elements of the specific offense to which they apply. Price v. State, 457 S.W.3d
437, 441 (Tex. Crim. App. 2015); Cook, 884 S.W.2d at 491.
Appellant was indicted for committing the offense of continuous sexual abuse
of a child. See PENAL § 21.02(b), (c), (h). The Court of Criminal Appeals, in the
context of a double jeopardy claim, has held that “continuous sexual abuse of a child
has a nature-of-conduct component: the repeated commission of sexual abuse,” but
that the offense “also has several essential circumstance-surrounding-conduct
components: that the victim of the repeated sexual abuse must be a child younger
than 14 years of age, and that the instances of sexual abuse must occur over a period
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of at least 30 days in duration.” Ramos v. State, 636 S.W.3d 646, 656 (Tex. Crim.
App. 2021); see also Price v. State, No. 10-22-00047-CR, 2023 WL 4363066, at *2
(Tex. App.—Waco July 5, 2023, no pet.) (mem. op., not designated for publication).
Appellant contends on appeal that the applicable mental states for the charged
offense—“intentionally” and “knowingly”—were incorrectly defined in the trial
court’s charge. The trial court’s charge defined “intentionally” and “knowingly” as
follows:
A person acts intentionally, or with intent, with respect to a result
of his conduct when it is his conscious objective or desire to engage in
the conduct or cause the result.
A person acts knowingly, or with knowledge, with respect to the
nature of his conduct or to the circumstances surrounding his conduct
when he is aware of the nature of his conduct or that the circumstances
exist. A person acts knowingly, or with knowledge, with respect to his
conduct, when he is aware that his conduct is reasonably certain to
cause the result.
See generally PENAL § 6.03(a)–(b) (emphasis added). We agree with Appellant.
The charge’s definition of “intentionally” refers to the incorrect conduct element—
“result of [his] conduct”—and omits any reference to one of the proper conduct
elements for this offense—“nature of [the] conduct.” Further, the second sentence
of the charge’s “knowingly” definition, by its reference to the phrase “cause the
result,” incorrectly includes a seemingly incomplete reference to the “result of
conduct” element. Therefore, because the mental states as defined in the trial court’s
charge were not properly limited to the applicable “nature-of-conduct” and
“circumstances surrounding the conduct” conduct elements, the trial court erred.
IV. Charge Error
A. Standard of Review
Reviewing complaints of charge error is a two-step process. Campbell, 664
S.W.3d at 245 (citing Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)).

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First, we must determine whether error exists. Id. Second, if there is error, we must
decide whether the appellant was harmed and if the harm is sufficient to require
reversal. Cyr v. State, 665 S.W.3d 551, 556 (Tex. Crim. App. 2022) (citing
Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013)); Ybarra v. State, 621
S.W.3d 371, 384 (Tex. App.—Eastland 2021, pet. ref’d). The applicable standard
of review to be utilized for charge error depends on whether the claimed error was
preserved. Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020).
The purpose of the trial court’s charge “is to inform the jury of the applicable
law and guide them in its application to the case.” Delgado v. State, 235 S.W.3d
244, 249 (Tex. Crim. App. 2007) (quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex.
Crim. App. 1996)). Charge error stems from the denial of a defendant’s right to have
the trial court provide the jury with instructions that correctly set forth the “law
applicable to the case.” Bell v. State, 635 S.W.3d 641, 645 (Tex. Crim. App. 2021)
(quoting CRIM. PROC. art. 36.14) (West 2007). Because the trial court is obligated
to correctly instruct the jury on the law applicable to the case, it is ultimately
responsible for the accuracy of its charge and the accompanying instructions.
Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018) (citing Delgado, 235
S.W.3d at 249). Therefore, when the charge is inaccurate, the trial court errs, and
the error is subject to the appropriate harm analysis. See Bell, 635 S.W.3d at 645.
B. Harm Analysis
Because we have determined that charge error exists, we must now conduct
the necessary harm analysis. See Ngo, 175 S.W.3d at 743. There is no dispute that
Appellant’s trial counsel did not object to the above definitions of “intentionally”
and “knowingly” as they were submitted in the trial court’s charge. Therefore, we
review the complained-of charge error under the Almanza “egregious harm”
standard. Madden v. State, 242 S.W.3d 504, 513 (Tex. Crim. App. 2007); see
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Under this standard,
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when, as in this case, the defendant or his trial counsel fail to assert proper objections
to the trial court’s charge or fail to request and present a proper jury instruction, we
will reverse only if the error was so egregious and created such harm that the
defendant was deprived of a fair and impartial trial. Villarreal v. State, 453 S.W.3d
429, 433 (Tex. Crim. App. 2015); Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim.
App. 2009); Almanza, 686 S.W.2d at 171.
“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.”
Villarreal, 453 S.W.3d at 433; Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim.
App. 2006). “Egregious harm is a ‘high and difficult standard’ to meet, and such a
determination must be ‘borne out by the trial record.’” Villarreal, 453 S.W.3d at
433 (quoting Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013)).
Further, “[a]n egregious harm determination must be based on a finding of actual
rather than theoretical harm.” Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim.
App. 2015) (quoting Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011)).
C. The Almanza Factors
In Almanza, the Court of Criminal Appeals identified the factors that a
reviewing court should consider when determining whether the complained-of
charge error resulted in egregious harm. 686 S.W.2d at 171. They are: (1) the charge
itself; (2) the state of the evidence, including the contested issues and the weight of
the probative evidence; (3) the arguments of counsel; and (4) any other relevant
information revealed by the trial record as a whole. See Villarreal, 453 S.W.3d at
433 (citing Almanza, 686 S.W.2d at 171). These factors guide our analysis.2
Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022).

2
We note that Appellant does not separately address the Almanza factors and to what extent, if any,
these factors would support a finding of egregious harm. Rather, Appellant only contends, globally, that
because the trial court’s charge error “amounts to fundamental error,” Appellant’s trial counsel was not
required to object to these definitional deficiencies to preserve error for our review.

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1. The Charge as a Whole
The first Almanza factor requires that we review the trial court’s charge in its
entirety. Villarreal, 453 S.W.3d at 433; Almanza, 686 S.W.2d at 171. The Court of
Criminal Appeals has held that, “[w]here the application paragraph correctly
instructs the jury, an error in the abstract instruction is not egregious.” Medina v.
State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); see also Kuhn v. State, 393 S.W.3d
519, 529 (Tex. App.—Austin 2013, pet. ref’d) (“Texas courts have repeatedly held
that where the application paragraph of the charge correctly instructs the jury on the
law applicable to the case, this mitigates against a finding that any error in the
abstract portion of the charge was egregious.”).
We note that the application paragraph of the trial court’s charge substantially
tracked the Penal Code’s standard mental culpability definitions for “intentionally”
and “knowingly.” See PENAL § 6.03(a)–(b). It is also significant that the application
paragraph properly tracked the language of the indictment, the necessary statutory
language, and the elements of continuous sexual abuse of a child. No harm results
from the trial court’s failure to limit the definitions of the culpable mental states in
the abstract portion of its charge if the application paragraph correctly states, as it
did here, the elements of the charged offense and directs the jury to the appropriate
definitions. See Patrick v. State, 906 S.W.2d 481, 493 (Tex. Crim. App. 1995);
Hughes v. State, 897 S.W.2d 285, 296–97 (Tex. Crim. App. 1994) (“[W]hen [the
terms “intentionally” and “knowingly”] are viewed in their factual context, it
becomes apparent which conduct element applies to which element of the offense.”);
Price, 2023 WL 4363066, at *3 (“The extra result-of-conduct language in the
abstract definitions was merely superfluous as it had no effect on the jury’s ability
to implement the application paragraph.”).
Here, although the trial court’s charge incorrectly omitted one of the required
conduct elements in the definition of “intentionally” and unnecessarily included,
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albeit an incomplete, conduct element in the definition of “knowingly,” the
application portion of its charge sufficiently tracked the language of the indictment
and the statutory elements of the indicted offense. Contrary to Appellant’s
suggestion, the trial court’s failure to limit the definitions of the culpable mental
states in this instance does not result in fundamental error or egregious harm. As
such, this factor weighs against a finding of egregious harm. See Medina, 7 S.W.3d
at 640.
2. The Evidence Presented at Trial
The second Almanza factor focuses on the evidence presented at trial.
Villarreal, 453 S.W.3d at 433; Almanza, 686 S.W.2d at 171. On appeal, Appellant
does not contend that the evidence is insufficient to support his conviction. Instead,
Appellant focuses on whether the charge error of which he complains improperly
affected or influenced the jury’s decision to find him guilty. The theory advanced
by Appellant was that he never sexually abused A.A., and his primary defensive
strategies, which he re-urges on appeal, were to attack the credibility of A.A. and
L.A., and to challenge the accuracy of the DNA testing and attendant results.
The evidence presented to the jury consisted primarily of the testimony of
A.A. and L.A. and their statements to law enforcement about the sexual abuse they
claimed that Appellant had inflicted upon A.A. over the years, and the collection and
testing of the DNA samples obtained from Appellant, A.A., and A.A.’s child. The
DNA evidence was conclusive and was not refuted by Appellant or any other source.
Although Appellant testified and denied that he ever sexually abused A.A., the jury
was free to reject Appellant’s explanations for how A.A. became pregnant with a
child that reliable, scientific evidence essentially proved was his.
In this case, Appellant did not contend that he did not have the requisite intent
to sexually abuse A.A. Rather, Appellant’s primary theory and defense was that the
sexual abuse never occurred. As such, his mental state was not an issue at trial.
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Accordingly, the state of the evidence weighs against a finding of egregious harm
with respect to how the terms “intentionally” and “knowingly” were defined in the
trial court’s charge.
3. The Arguments of Counsel
The third Almanza factor pertains to the arguments of counsel. In weighing
this factor, we must determine whether any statements made by the State,
Appellant’s trial counsel, or the trial court exacerbated or ameliorated the charge
error. Arrington, 451 S.W.3d at 844; see also Villarreal, 453 S.W.3d at 433;
Almanza, 686 S.W.2d at 171.
The closing argument of Appellant’s trial counsel essentially focused on
Appellant’s denial that he never sexually abused A.A., A.A.’s credibility, and the
alleged inconsistencies in her and L.A.’s testimony. In its closing argument, the
State did not discuss or allude to Appellant’s intent or knowledge. Rather, the State’s
argument focused primarily on the DNA evidence and, like Appellant’s argument,
A.A.’s testimony and statements. Therefore, because the matter of Appellant’s
intent or knowledge was not a focus of counsels’ arguments, the third factor does
not weigh in favor of a finding of egregious harm.
4. Other Relevant Information
Finally, the fourth Almanza “catch-all” factor requires that we consider any
other relevant information in the record that would assist in our determination of
whether Appellant suffered egregious harm as a result of the charge error. See
Gelinas v. State, 398 S.W.3d 703, 707 (Tex. Crim. App. 2013); see also Villarreal,
453 S.W.3d at 433; Almanza, 686 S.W.2d at 171. We have outlined the evidence
above that is pertinent to our harm analysis. Further, nothing in the record before us
indicates that the jury was unable to render a correct verdict, consistent with the
evidence presented, based on the trial court’s erroneous definitions of “intentionally”
and “knowingly.” In fact, the record shows that, during its deliberations, the jury
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never inquired, submitted any note, or communicated to the trial court any confusion
or concerns by them regarding any aspect of the charge. Because the record does
not demonstrate that the erroneous definitions affected or influenced the jury’s
ability to determine whether Appellant had the requisite intent or knowledge to
sexually abuse A.A., this factor weighs against a finding of egregious harm.
5. The Almanza Factors Considered Together
We hold that the trial court erred when it submitted incorrect conduct element
definitions in its charge. However, considering the record before us and the Almanza
factors, we conclude that this error did not result in a level of egregious harm such
that Appellant was deprived of a fair and impartial trial. Accordingly, we overrule
Appellant’s second issue.
V. This Court’s Ruling
We affirm the judgment of the trial court.

W. STACY TROTTER
JUSTICE

June 13, 2024
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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