Jorge Alvarez v. the State of Texas

Affirmed and Opinion filed April 25, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00896-CR

JORGE ALVAREZ, Appellant

V.
THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1689277

OPINION

In this appeal from a conviction for indecency with a child by exposure,
appellant argues in two issues that the trial court reversibly erred by submitting a
lesser-included offense, and by overruling defensive objections to improper
questions during voir dire. We overrule both of these issues and affirm the trial
court’s judgment.
LESSER-INCLUDED OFFENSE

Appellant was charged with one count of aggravated sexual assault of a child.
The indictment alleged that he had “intentionally and knowingly cause[d] the sexual
organ of [the complainant], a person younger than fourteen years of age, to contact
[his] mouth.” Appellant pleaded not guilty to that charge, and his case proceeded to
a trial by jury.

During the charge conference of that trial, the prosecutor requested the
submission of a lesser-included offense for indecency with a child by exposure.
Defense counsel affirmatively stated that he had no objections to that submission.
The trial court accordingly submitted a charge containing instructions on both
aggravated sexual assault of a child and indecency with a child by exposure. The
jury convicted appellant of indecency with a child by exposure.

Appellant now argues in his first issue on appeal that the trial court committed
charge error because, in his view, indecency with a child by exposure is not actually
a lesser-included offense of aggravated sexual assault of a child. This issue raises a
question of law, for which our review is de novo. See George v. State, 634 S.W.3d
929, 937 (Tex. Crim. App. 2021).

When deciding whether one offense is a lesser-included offense of another, a
reviewing court applies the cognate pleadings approach. See Hall v. State, 225
S.W.3d 524, 535 (Tex. Crim. App. 2007). Under this approach, the reviewing court
does not consider the evidence produced at trial. Id. Instead, the reviewing court
compares the elements of the greater, charged offense as stated in the indictment to
the statutory elements of the purported lesser-included offense. Id. at 535–36. An
offense qualifies as a lesser-included offense if the indictment for the greater offense
alleges all of the elements of the lesser-included offense, or if the indictment for the
greater offense alleges elements plus facts (including descriptive averments) from
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which all of the elements of the lesser-included offense may be deduced. See Ex
parte Watson, 306 S.W.3d 259, 273 (Tex. Crim. App. 2009).

This deductive process is sometimes known as the “functional-equivalence
concept.” See State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim. App. 2013). “When
utilizing functional equivalence, the court examines the elements of the lesser
offense and decides whether they are functionally the same or less than those
required to prove the charged offense.” Id.

Applying this cognate pleadings approach to the case at hand, we begin with
the elements of aggravated sexual assault of a child, as they were alleged in the
indictment. To obtain a conviction for that charged offense, the prosecution had to
prove (1) that appellant intentionally or knowingly caused the sexual organ of the
complainant to contact his own mouth, and (2) that the complainant was a child
younger than fourteen years of age at the time of the contact. See Tex. Penal Code
§ 22.021(a)(1)(B)(iii), (a)(2)(B).

For the purported lesser-included offense of indecency with a child by
exposure, the prosecution had to prove the following statutory elements: (1) with the
intent to arouse or gratify the sexual desire of any person, appellant caused the
complainant to expose any part of her genitals, and (2) the complainant was a child
younger than seventeen years of age at the time of the exposure. See Tex. Penal Code
§ 21.11(a)(2)(B).

Appellant argues that indecency with a child by exposure cannot be a lesser-
included offense of aggravated sexual assault of a child because the indecency
offense requires proof of exposure, whereas the assault offense does not. Appellant
does not cite to any authority in support of this argument, and we do not agree with
it. While there is no express reference to “exposure” in the alleged elements of
aggravated sexual assault of a child, an act of exposure is nonetheless required to
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prove that greater offense because oral contact with the complainant’s sexual organ
could not be possible unless the sexual organ were exposed. See Cantu v. State, 604
S.W.3d 590, 593 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d) (indicating that
exposure, in this context, occurs when concealment has been removed). Thus, the
exposure element is “functionally the same or less” than what would be required to
prove the charged offense. See Meru, 414 S.W.3d at 162.

Appellant challenges this reasoning by arguing that a contact can occur even
without an exposure, and vice versa, that an exposure can occur even without a
contact. For these propositions, appellant relies on Speights v. State, 464 S.W.3d 719
(Tex. Crim. App. 2015), which stated the following:

Thus, it is possible to commit indecency with a child by sexual contact
without necessarily committing indecency with a child by exposure. It
is also possible to commit indecency with a child by exposure without
necessarily committing indecency with a child by sexual contact
because a person can commit the required exposure and never advance
to the point of engaging in contact.

Id. at 723.

But appellant overlooks two critical distinctions with Speights.

The first offense at issue in that case was indecency with a child by sexual
contact, not aggravated sexual assault of a child. And the statute for that indecency
offense defines “sexual contact” as any sort of inappropriate touching, including a
touching “through clothing.” See Tex. Penal Code § 21.11(c). Thus, that offense can
be committed even when the child is fully clothed—i.e., not exposed. The same
cannot be said of aggravated sexual assault of a child, at least when the indictment
alleges that the defendant caused the child’s sexual organ to contact the defendant’s
mouth.

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Also, the other offense at issue in Speights was indecency with a child by
exposure, which is the same offense at issue here, but the charges were under
different subsections. There, the defendant was charged with exposing himself by
masturbating in front of a child, which implicated Section 21.11(a)(2)(A) of the
Texas Penal Code, whereas in this case, appellant was alleged to have exposed the
child’s genitals (not his own), thereby implicating Section 21.11(a)(2)(B).

In sum, Speights is distinguishable, and it does not alter our conclusion that
indecency with a child by exposure is a lesser-included offense of aggravated sexual
assault of a child when the defendant is alleged to have committed that greater
offense by causing the child’s sexual organ to contact the defendant’s mouth. See
Evans v. State, 299 S.W.3d 138, 143 (Tex. Crim. App. 2009) (“Indecency with a
child is a lesser-included offense of aggravated sexual assault of a child when both
offenses are predicated on the same act.”). Because the trial court reached the same
conclusion, we likewise conclude that the trial court did not err by submitting a jury
charge with the instruction for indecency with a child by exposure.

VOIR DIRE

In his second issue, appellant argues that the trial court abused its discretion
by permitting two lines of questioning during voir dire, one of which concerned the
burden of proof, and the other concerning an improper commitment question. We
examine each in turn.

I. Burden of Proof

During her portion of voir dire, the trial judge explained that the prosecution
had the burden of proof beyond a reasonable doubt, and that this burden was greater
than both the preponderance standard that applied in ordinary civil cases, as well as
the clear and convincing standard that applied in cases where the government seeks

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to remove a child from a parent’s home. The trial judge stated that there was a
continuum of sorts, but that “these lawyers will probably never agree where on this
continuum beyond a reasonable doubt is.”

When the prosecutor began his portion of voir dire, he also addressed this
continuum. The prosecutor selected a venireperson who was the parent of six
children, and he asked that venireperson, “How much evidence would it take for the
State to take away your six kids? A little, a lot?” The venireperson responded, “It
really depends.” Unsatisfied with that response, the prosecutor shifted to another
venireperson, and asked a similar question. This other venireperson, who was the
parent of two children, answered that “not very much” evidence would be required
for the government to take away those children. The prosecutor replied that “you
guys are failing,” and that “a lot of people that I’ve asked sometimes have said it
would take a lot of evidence, right?”

The prosecutor continued:

The point I’m trying to get at is don’t confuse clear and
convincing here with beyond a reasonable doubt here. Meaning, wow,
I got to get—the State has to give you a lot of evidence to take away
my kids. Because the difference that we see here is beyond a reasonable
doubt takes away your liberty. They put you in prison, right?
Clear and convincing, you could get your kids back at some
point, right? If you did whatever they said to get them back.
***
Right. So it’s not like we’re taking your kids forever. So the point
I’m just trying to make is don’t compare like, wow, clear and
convincing is a lot. So now I got to get a whole bunch more for beyond
a reasonable doubt. Does that make sense?
At this point, the defense counsel objected: “Judge, objection, improper voir
dire. Proof beyond a reasonable doubt is not quantitative, as you know. Geesa versus
State of Texas had a definition for reasonable doubt and it was overruled.”
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The trial court overruled counsel’s objection. Appellant now challenges that
ruling, which we review for an abuse of discretion. See Barajas v. State, 93 S.W.3d
36, 38 (Tex. Crim. App. 2002).

Appellant argues that the prosecutor’s comments were “not necessary”
because ever since Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000), which
overruled Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991), juries have not
been instructed with a formal definition for “beyond a reasonable doubt.” He
relatedly argues that the prosecutor’s comments were improper because they
suggested that there is a quantitative measure to “beyond a reasonable doubt.”

We do not believe that the prosecutor was attempting to define the standard
for beyond a reasonable doubt or otherwise resurrect Geesa. Rather, the prosecutor
was merely drawing a comparison to the clear and convincing standard, which is a
proper subject to address during voir dire. See Fuller v. State, 363 S.W.3d 583, 587
(Tex. Crim. App. 2012) (observing that a prosecutor may properly “inquire whether
a prospective juror understands that proof beyond a reasonable doubt must at least
constitute a more onerous standard of proof than preponderance of the evidence and
clear and convincing evidence”). Accordingly, the trial court did not abuse its
discretion by overruling appellant’s objection.

Appellant also argues that the challenged comments encouraged the jury to
hold the prosecution to a “lesser burden of proof” because the prosecutor suggested
that the removal of a parent’s child was more profound than the loss of a stranger’s
liberty. Unlike the arguments discussed above, this argument does not comport with
appellant’s trial objection. Therefore, it was not preserved and we need not consider
it. See Tex. R. App. P. 33.1; Compton v. State, 666 S.W.3d 685, 714 (Tex. Crim.
App. 2023).

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II. Commitment Question

Later in his voir dire, the prosecutor addressed the topic of child victims who
testified. This line of questioning led to two objections for improper commitments.
We reproduce the relevant passage here:

Prosecutor: Well, tell me, Juror Number 58, how do you think a
juror—or—or a child would testify? In your mind, play it
through. What do you think the emotions of a child would
be?
Juror: They’re going to be nervous. They’re going to be scared.
Prosecutor: Uh-huh.
Juror: You know, they’re just going to be nervous. Like you said,
strangers; it’s people they don’t know.
Prosecutor: Yeah.
Juror: The potential accused person that’s going to be sitting
there looking at them.
Prosecutor: What about crying?
Juror: Yeah. I would say crying, stuttering.
Prosecutor: Uh-huh.
Juror: No eye contact, I would imagine.
Prosecutor: Right.
Defense: Judge, it’s improper voir dire. It’s a commitment question
relieving the State of their burden of proof.
The Court: All right. Just rephrase your question, [prosecutor].
Defense: Thank you, Your Honor.
Prosecutor: Okay.
Now, what about the opposite of that? Juror Number 49,
what if the child—where is 49? What if the opposite
occurs and the child doesn’t show any emotion? What do
you think about that?
Juror: It’s quite possible—
Defense: Commitment question, Your Honor.
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Prosecutor: I’m just asking—
The Court: I couldn’t hear his question. What if the child what?
Prosecutor: I said what if the child shows no emotion. What do you
think about that?
The Court: I’ll let you ask that question.
Appellant now challenges these rulings, arguing that the prosecutor’s
questions committed the jury to finding the complainant credible, regardless of
whether the complainant exhibited emotions or certain behaviors.

An otherwise proper question is impermissible if it attempts to commit the
juror to a particular verdict based on particular facts. See Standefer v. State, 59
S.W.3d 177, 181 (Tex. Crim. App. 2001). When deciding whether a prosecutor has
asked an improper commitment question, we apply a two-part test. Id. at 182–83.
First, we must determine if the prosecutor’s question is in fact a commitment
question. Id. The question calls for a commitment if one of its possible answers
would require the venireperson to resolve an issue or to refrain from resolving an
issue on the basis of one or more facts contained within the question. Id. at 180. If
the question is a commitment question, then we move on to the second part, which
requires that we determine whether the question is proper or improper. Id. at 182–
83. For the question to be proper, one of its possible answers must give rise to a valid
challenge for cause, and the question must contain no more facts than necessary to
test whether the venireperson is challengeable for cause. Id. If no possible answer
would give rise to a valid challenge for cause, or if the question contains too many
facts, then the question is improper and the trial court should not allow it. Id.

The challenged questions here were “What about crying?” and “What if the
opposite occurs and the child doesn’t show any emotion? What do you think about
that?” These questions would not require a venireperson to resolve an issue or to
refrain from resolving an issue on the basis of a particular fact stated within the
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question. These questions simply asked the venirepersons for their general views on
child witnesses and their demeanors. They were not commitment questions, and the
trial court did not abuse its discretion by overruling appellant’s objection. Cf.
Mendez v. State, 612 S.W.3d 443, 449 (Tex. App.—Houston [1st Dist.] 2020, pet.
ref’d) (question asking for a belief as to whether a child would more commonly deny
actual abuse than falsely allege abuse was not an improper commitment question).

CONCLUSION

The trial court’s judgment is affirmed.

/s/ Tracy Christopher
Chief Justice

Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.
Publish — Tex. R. App. P. 47.2(b).

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