Cody Watson v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-24-00363-CR

Cody Watson,
Appellant

v.

The State of Texas,
Appellee

On appeal from the
87th District Court of Freestone County, Texas
Judge Amy Thomas Ward, presiding
Trial Court Cause No. 23-065CR

JUSTICE SMITH delivered the opinion of the Court.

MEMORANDUM OPINION

Following a jury trial, Cody Watson was convicted of the offense of

continuous sexual abuse of a child. See TEX. PENAL CODE ANN. § 21.02. The

jury assessed his punishment at thirty years in prison. On appeal, Watson

raises issues related to jury qualification, the trial court’s denial of his motion

to quash the indictment, improper outcry witness testimony, and jury charge

error. We affirm.
Jury Qualification

In his first issue, Watson argues that the trial court erred in failing to

qualify the jury panel as required by article 35.12 of the Code of Criminal

Procedure. See TEX. CODE CRIM. PROC. ANN. art. 35.12.

Article 35.12 requires the trial court, or someone under its direction, to

ask prospective jurors whether they are qualified voters, whether they have

been convicted of a theft or of a felony, and whether they are under indictment

or legal accusation for a theft or a felony. Id. at (a). Watson specifically takes

issue with the trial court’s alleged failure to ask whether the prospective jurors

were convicted of, or under legal accusation for, a theft or felony.

Appellate courts must presume that the jury was properly impaneled

and sworn unless the matter was disputed in the trial court or the record

affirmatively shows the contrary. See TEX. R. APP. P. 44.2(c)(2). Watson

acknowledges that he did not dispute juror qualification in the trial court. In

fact, Watson’s trial counsel affirmatively voiced no objection to the venire

members selected to serve on the jury. Citing generally to the voir dire volume

of the reporter’s record, he claims the record “affirmatively shows” that the

trial court failed to qualify the jury because the record does not document

whether the procedure occurred. Article 35.12 does not require a record of

compliance with its procedures. See TEX. CODE CRIM. PROC. ANN. art. 35.12.

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Moreover, a silent record is not an affirmative showing that the statutory

qualification procedure did not occur. See Osteen v. State, 642 S.W.2d 169, 171

(Tex. Crim. App. 1982). Watson has failed to overcome the Rule 44.2(c)(2)

presumption that the jury was properly qualified.

Watson, however, urges us not to apply the Rule 44.2(c)(2) presumption.

He claims that the Court of Criminal Appeals exceeded its rulemaking

authority in promulgating the rule because the presumption that the jury was

properly qualified abridges and modifies a defendant’s substantive right to a

fair trial. See TEX. GOV’T CODE ANN. § 22.108. Even if we refuse to apply the

presumption as Watson requests, and we further assume that the trial court

did not ask the article 35.12 qualifying questions, Watson’s first issue still fails

for failure to demonstrate harm from this alleged error. Emphasizing the Sixth

Amendment right to a trial by a fair jury, Watson contends that juror

qualification in compliance with article 35.12 is constitutional error subject to

harm analysis under Rule 44.2(a). See TEX. R. APP. P. 44.2(a). Watson does

not identify – and we have not found – any controlling authority holding that

a trial court's failure to ask the qualifying questions in article 35.12 is

constitutional error rather than statutory error. In fact, “many – perhaps most

– statutes are designed to help ensure the protection of one constitutional right

or another. Having such a purpose does not convert a statutory right into a

Cody Watson v. The State of Texas Page 3
one of federal constitutional dimension, much less a right whose violation is

considered to be structural error.” Gray v. State, 159 S.W.3d 95, 97 (Tex. Crim.

App. 2005). We reject Watson’s constitutional-error argument.

We must disregard any non-constitutional error that does not affect the

appellant’s substantial rights. See TEX. R. APP. P. 44.2(b). To demonstrate

harm from failure to qualify the jury, the record must show Watson was

deprived of a lawfully constituted jury of qualified individuals. See Gray v.

State, 233 S.W.3d 295, 298, 301 (Tex. Crim. App. 2007). Watson, claiming that

this is an unworkable standard, does not identify any evidence that any jurors

were unqualified due to being under legal accusation for, or convicted of, a theft

or a felony. We have uncovered no such evidence in our own review of the

record. Watson has thus failed to demonstrate harm.

Accordingly, we overrule Watson’s first issue.

Motion to Quash Indictment

In his second issue, Watson claims that the trial court erred in denying

his motion to quash the indictment. We disagree.

STANDARD OF REVIEW

When reviewing a trial court’s decision to deny a motion to quash an

indictment, we apply a de novo standard of review. See Lawrence v. State, 240

S.W.3d 912, 915 (Tex. Crim. App. 2007).

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ANALYSIS

As relevant to the issue presented on appeal, the indictment alleged as

follows:

… Cody Watson did then and there[,]

during a period that was 30 or more days in duration, to-wit: from
on or about the 8th day of December, 2017 through the 8th day of
December, 2022, when the defendant was 17 years of age or older,
commit two or more acts of sexual abuse against a child younger
than 14 years of age, namely,

with the intent to arouse or gratify the sexual desire of the
defendant, engage in sexual contact with [A.A.], hereafter styled
the complainant, by touching the genitals of the complainant, a
child younger than 17 years of age

with the intent to arouse or gratify the sexual desire of the
defendant, engage in sexual contact with [A.A.], hereafter styled
the complainant, by touching the genitals of the complainant, a
child younger than 17 years of age[.]

The day after the jury was empaneled and sworn, Watson filed his

“Motion to Quash and Exception to Substance of the Indictment and Motion to

Quash and Exception to Form of the Indictment.” Watson contended that the

indictment failed to sufficiently inform him of the charge against him and did

not “lay out if [sic] ‘plain and intelligible words’ an alleged criminal act.” The

basis of his complaint was that the predicate offense paragraphs describe

criminal acts against a victim under the age of seventeen, instead of a victim

Cody Watson v. The State of Texas Page 5
under the age of fourteen as required for the offense of continuous sexual abuse

of a child.

After hearing arguments of counsel, the trial court denied the motion to

quash.

If a defendant does not object to a defect, error, or irregularity of form or

substance in an indictment “before the date on which the trial on the merits

commences,” he waives and forfeits the right to object to the defect, error, or

irregularity and may not raise the objection on appeal or in any other post-

conviction proceeding. TEX. CODE CRIM. PROC. ANN. art. 1.14(b). More

specifically, the Court of Criminal Appeals has held that a defendant must

object to any error in the indictment “before the day of trial and certainly before

the jury is empaneled.” Jenkins v. State, 592 S.W.3d 894, 902 (Tex. Crim. App.

2018) (quoting Teal v. State, 230 S.W.3d 172, 178 n.24 (Tex. Crim. App. 2007)).

However, we must determine whether the indictment is constitutionally

sufficient before applying the waiver doctrine as set out in the statute. See

Teal, 230 S.W.3d at 180-81. The question to be asked is: “Can the district court

and the defendant determine, from the face of the indictment, that the

indictment intends to charge a felony or other offense for which a district court

has jurisdiction?” Id. at 181. If so, a defendant must make a pretrial objection

Cody Watson v. The State of Texas Page 6
to a defect in the indictment or forfeit the right to complain about it on appeal.

Smith v. State, 309 S.W.3d 10, 18 (Tex. Crim. App. 2010).

At the top of the indictment are the words “Continuous Sexual Abuse of

Young Child/Children” and “First Degree Felony.” The indictment alleges that

over a period of thirty or more days – specifically from December 8, 2017

through December 8, 2022 – Watson committed two or more acts of sexual

abuse against a child under the age of fourteen while he was at least seventeen

years old. The indictment then goes on to specify that those acts of sexual

abuse involve instances of indecency with a child by sexual contact committed

by Watson touching A.A.’s genitals with the intent to arouse or gratify his

sexual desire. All of the necessary elements of the offense of continuous sexual

abuse of a child were pled. See TEX. PENAL CODE ANN. § 21.02. The trial court

and defendant could conclude that the indictment charged a felony offense and

that the district court had jurisdiction of the offense.1 Accordingly, to preserve

this issue for appellate review, Watson needed to object to the indictment

before trial commenced. Here, the jury was empaneled and trial commenced

on November 4, 2024. Watson filed his motion to quash the indictment on

November 5, 2024.

1 We note that Watson does not challenge the sufficiency of the two predicate paragraphs alleging the

felony offense of indecency with a child by contact, which would also vest the trial court with
jurisdiction.

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Because Watson failed to make a timely objection before the date on

which the trial on the merits commenced, he forfeited any right to object to any

alleged defect or error in the indictment. Accordingly, his second issue is

overruled.

Outcry Witness Testimony

In his third issue, Watson asserts that the trial court erred by

designating A.A.’s former assistant principal as the outcry witness under

article 38.072 of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC.

ANN. art. 38.072. We find the trial court’s error to be harmless.

STANDARD OF REVIEW AND APPLICABLE LAW

We review a trial court’s designation of an outcry witness for an abuse of

discretion. See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990).

Article 38.072 of the Code of Criminal Procedure provides a statutory

exception to the rule against hearsay for prosecutions of certain sexual

offenses. See TEX. CODE CRIM. PROC. ANN. art. 38.072. This statute permits

testimony from the first person eighteen years of age or older, other than the

defendant, to whom the child made a statement about the offense. Id. at § 2(a).

Courts have construed a statement “about the offense” to mean a statement

that “in some discernible manner describes the alleged offense” and is more

than “a general allusion” of sexual abuse. Garcia, 792 S.W.2d at 91. The

Cody Watson v. The State of Texas Page 8
statute requires the trial court to hold a hearing outside of the jury’s presence

to determine whether the statement is reliable based on the time, content, and

circumstances of the statement. See TEX. CODE CRIM. PROC. ANN. art. 38.072,

§ 2(b)(2).

RELEVANT FACTS

Prior to the article 38.072 hearing, defense counsel objected to “not

having been properly noticed under article 38.072” because the State simply

attached the offense report to its notice instead of providing a summary of the

statement made to the outcry witness. See id. at §2(b)(1)(C).

At the outcry hearing, A.A.’s former assistant principal at Fairfield

Junior High testified that in December of 2022, A.A. “approached [her] about

a situation she wanted to discuss.” The assistant principal confirmed that A.A.

“explain[ed] an allegation of sexual abuse” perpetrated by Watson and that she

was the first person A.A. spoke with about the abuse. No further details about

the alleged abuse were provided during the hearing. The trial court found that

the assistant principal “meets the requirements” and ruled that she could

testify as the outcry witness. Defense counsel then reiterated, “Based on my

objection to the notice on 38.072, I have to object to this being a proper outcry

witness[.]” The trial court overruled this objection and granted a running

objection.

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At trial, the assistant principal testified that A.A. approached her before

school on December 8, 2022, and asked to speak with her in her office. While

walking to the office, A.A.’s lip began to quiver and she appeared upset. The

assistant principal sat down with A.A. and asked what was wrong. A.A. told

her, “my stepdad touched me down there,” while pointing down to her “pubic

area.” The assistant principal stated that A.A. told her the abuse happened

more than once over the course of multiple years, with the last incident

occurring sometime around Thanksgiving.

ANALYSIS

On appeal, Watson contends that the trial court abused its discretion by

designating the assistant principal as the outcry witness because the assistant

principal’s testimony at the outcry hearing was no more than a general allusion

that sexual abuse occurred. Stated another way, he contends that the State

did not meet its burden at the article 38.072 hearing to demonstrate that A.A.

made a “statement about the offense” to the assistant principal in order to

make her testimony admissible under the statute. Watson argues the

assistant principal’s testimony was harmful because it bolstered A.A.’s

credibility when his defensive theory at trial was that A.A. fabricated her claim

of sexual abuse.

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Assuming without deciding that this issue was preserved for our review2,

we agree that the trial court erred in designating the assistant principal as the

outcry witness based on the testimony provided at the article 38.072 hearing.

No testimony was presented demonstrating that A.A. described the sexual

abuse “in some discernible manner” to the assistant principal. See Garcia, 792

S.W.2d at 91. The statement that A.A. “explain[ed] an allegation of sexual

abuse” is nothing more than a general allusion that something in the area of

child abuse was occurring and did not provide a basis for the trial court to

reasonably determine whether “the statement is reliable based on the […]

content” of the statement. TEX. CODE CRIM. PROC. ANN. art 38.072, § 2(b)(2).

However, we hold that the admission of the assistant principal’s outcry

testimony was harmless. The erroneous admission of hearsay testimony under

article 38.072 is non-constitutional error. Rosales v. State, 548 S.W.3d 796,

808 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d). Such error is harmless

if we are reasonably assured that the error did not influence the verdict or had

but a slight effect. Id. Where the same or similar evidence is admitted without

objection elsewhere during trial, the error is harmless. Id.

2 Watson’s objection at trial does not comport with his issue on appeal. See TEX. R. APP. P. 33.1 (a).
His complaint at trial was that the State failed to provide proper notice under article 38.072 of the
content of the assistant principal’s expected testimony, not that the State failed to meet its burden
under article 38.072 to demonstrate that A.A. made more than a “general allusion” of sexual abuse to
the assistant principal.

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Here, the same or similar evidence was admitted without objection

through A.A.’s testimony. A.A. testified that the family lived in Cayuga when

she was in the second grade through fourth grade, during which time Watson

sexually assaulted her on three occasions by rubbing her vagina underneath

her clothing with his hand. A.A. explained that the family moved to Fairfield

in 2020, where Watson continued to touch her vagina with his hand “almost

every day.” She recalled that the last incident of sexual abuse occurred

approximately three weeks before she outcried to the assistant principal in

2022. The jury heard directly from A.A. and was in the best position to judge

her credibility, regardless of the outcry testimony. See id. at 809. In light of

A.A’s detailed testimony concerning the acts of sexual abuse, we are reasonably

assured that any error in the admission of the outcry testimony did not

influence the jury's verdict, or had but a slight effect and was harmless.

Watson’s third issue is overruled.

Jury Charge Error

In his fourth issue, Watson asserts that the guilt-innocence jury charge

contained an erroneous definition of “sexual contact” and that he was

egregiously harmed by this unobjected-to error. Assuming without deciding

that the jury charge contained error, we find that Watson was not egregiously

harmed.

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STANDARD OF REVIEW

A claim of jury charge error is reviewed using the procedure set out in

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). The first step

is to determine whether there is error in the charge. Ngo v. State, 175 S.W.3d

738, 743 (Tex. Crim. App. 2005). If there is error but the appellant failed to

object, the error in the charge is reviewed only for egregious harm. Id. at 743-

44. Egregious harm means that the error “affects ‘the very basis of the case,’

deprives the defendant of a ‘valuable right,’ or ‘vitally affect[s] a defensive

theory.’” Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006) (citing

Almanza, 686 S.W.2d at 172). A defendant must have suffered actual harm,

not theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App.

2012).

To determine if the charge error resulted in egregious harm, we review

“the entire jury charge, the state of the evidence, including the contested issues

and weight of probative evidence, the argument of counsel and any other

relevant information revealed by the record of the trial as a whole.” Almanza,

686 S.W.2d at 171.

Cody Watson v. The State of Texas Page 13
ANALYSIS

As relevant here, a predicate “act of sexual abuse” for the offense of

continuous sexual abuse of a child includes an act constituting indecency with

a child under section 21.11(a)(1) of the Penal Code.3 See TEX. PENAL CODE

ANN. § 21.02(c)(2). Indecency with a child under section 21.11(a)(1) is

committed when a person engages in “sexual contact” with a child. See id. at

§ 21.11(a)(1). The general definitions applicable to offenses in Chapter 21 of

the Penal Code are listed in section 21.01. See id. at § 21.01. In Chapter 21,

“sexual contact” means “except as provided by section 21.11 or 21.12, any

touching of the anus, breast, or any part of the genitals of another person with

intent to arouse or gratify the sexual desire of any person.” Id. at § 21.01(2)

(emphasis added). Indecency with a child under section 21.11 contains its own

definition of “sexual contact,” namely, as relevant here, “any touching by a

person, including touching through the clothing, of the anus, breast, or any

part of the genitals of a child” with the intent to arouse or gratify the sexual

desire of any person. Id. at § 21.11(c)(1).

Here, the abstract portion of the jury charge used the general definition

of “sexual contact” from section 21.01(2) of the Penal Code. As charged, the

predicate “acts of sexual abuse” were acts constituting indecency with a child

3 As long as the offense was committed in a manner other than touching the breast of the child. See
id.

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under section 21.11; therefore, Watson argues, the appropriate statutory

definition of “sexual contact” was the more specific definition applicable to

offenses under section 21.11.

Watson acknowledges that this alleged error was not objected to in the

trial court and that the “egregious harm” standard applies.

In reviewing the state of the evidence, we consider the contested issues

and weight of the probative evidence “to determine whether the evidence made

it more or less likely that the jury charge caused appellant actual harm.”

Arrington v. State, 451 S.W.3d 834, 841 (Tex. Crim. App. 2015). The primary

difference between the general definition of “sexual contact” and the specific

definition from section 21.11(c)(1) is the maximum permissible age of the

victim of the sexual contact. Watson concedes that “[t]he disputed evidence

was whether [he] committed this offense, not the age of the parties.” Indeed,

A.A. was undisputedly a child under the age of fourteen during the dates of

offense alleged. She was thirteen years old when she outcried to her assistant

principal. This factor thus weighs against a finding of egregious harm.

Watson also asserts that “under this charge, there was no requirement

that the person who the defendant touch [sic] was a child.” This is incorrect.

The application paragraph provided, in relevant part:

[I]f you find from the evidence beyond a reasonable doubt that,
during a period that was thirty (30) days or more in duration, to-

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wit: from on or about the 8th day of December, 2017 to the 8th day
of December, 2022, in Freestone County, Texas, the Defendant,
CODY WATSON, when he was seventeen (17) years of age or older,
did commit two or more of the following acts of sexual abuse
against a child, namely [A.A.], who at the time was a child younger
than fourteen (14) years of age, to-wit:

The Defendant did then and there, with the intent to
arouse or gratify the sexual desire of the defendant,
engage in sexual contact with [A.A.], hereafter styled the
complainant, by touching the genitals of the
complainant, a child younger than 14 years of age;

AND/OR

The Defendant did then and there, with the intent to
arouse or gratify the sexual desire of the defendant,
engage in sexual contact with [A.A.], hereafter styled the
complainant, by touching the genitals of the
complainant, a child younger than 14 years of age;

then you will find the Defendant guilty of the offense of Continuous
Sexual Abuse of a Young Child as alleged in the indictment[.]

(emphasis added). The application paragraph expressly required the jury to

find beyond a reasonable doubt that Watson touched A.A.’s genitals with the

intent to arouse or gratify his sexual desire when A.A. was a child younger

than fourteen years old.

In his analysis on the jury charge as a whole, Watson discusses the trial

court’s instruction on juror notetaking. He asserts that the notetaking

instruction failed to substantially comply with the Court of Criminal Appeals’

suggested instruction in Price v. State, 887 S.W.2d 949, 955 (Tex. Crim. App.

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1994), and permitted misuse of juror notes during deliberations. Without

identifying any evidence in the record that any juror misused his or her notes

during deliberations, or explaining how this notetaking instruction has any

relation to the “sexual contact” definition at the center of his issue presented

on appeal, he then makes the conclusory statement that the jury charge

“supports a finding of egregious harm.” We disagree. In reviewing the jury

charge as a whole, we find that the broader definition of “sexual contact” was,

as discussed above, properly restricted in the application paragraph to apply

only to a child under the age of fourteen. This factor weighs against a finding

of egregious harm.

We also consider whether any statements made during the trial by the

prosecutor, the defense counsel, or the trial court may have exacerbated or

ameliorated the error in the jury charge. Arrington, 451 S.W.3d at 844.

Watson concedes that the attorneys did not argue the meaning of sexual

contact.

Considering the four Almanza factors, we find that Watson was not

egregiously harmed by the trial court’s use of the general definition of “sexual

contact” in the abstract portion of the jury charge. Accordingly, his fourth issue

is overruled.

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Conclusion

Having overruled all of Watson’s issues on appeal, we affirm the

judgment of the trial court.

STEVE SMITH
Justice

OPINION DELIVERED and FILED: January 29, 2026
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
Do not publish
CRPM

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