LARREE ALLAN MCWILLIAMS APPELLANT v. THE STATE OF TEXAS APPELLEE

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Court of Appeals of Texas, Amarillo.

LARREE ALLAN MCWILLIAMS, APPELLANT v. THE STATE OF TEXAS, APPELLEE

No. 07-16-00251-CR

Decided: June 23, 2017

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant, Larree Allan McWilliams, was convicted of continuous sexual abuse of a child and sentenced to thirty years in prison. In his sole issue on appeal, he contends that the jury charge submitted during the guilt/innocence phase of the trial was defective. The defect consisted of the omission of an element of the crime from the application paragraph. The element was that mandating the defendant be seventeen years or older when committing the sexual abuse. Because the element was omitted, the jury's verdict allegedly did “not constitute a finding that he committed the offense at all”; thus, he should simply be acquitted without any harm analysis. We overrule the issue and affirm.1

Though we find interesting the argument that a defendant should simply be acquitted when an element of the crime is omitted from the application paragraph of the charge, we cannot do that. This is so because harm arising from charge error is analyzed under the standard espoused in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985), according to our Texas Court of Criminal Appeals. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). Such an analysis must occur even if the error consists of omitting an element of the offense from the application paragraph of the charge. See, e.g,, Williams v. State, No. 04-07-00738-CR, 2008 Tex. App. LEXIS 4190, at *7-14 (Tex. App.—San Antonio June 11, 2008, no pet.) (mem. op., not designated for publication) (where the omission was found to be fundamental error but the reviewing court nonetheless applied an Almanza analysis); Shelton v. State, No. 05-05-00846-CR, 2006 Tex. App. LEXIS 5747, at *6-8 (Tex. App.—Dallas June 30, 2006, pet. ref'd) (not designated for publication) (the same).

So, to the extent that omitting an element of an offense from the application paragraph of the charge is fundamental error, we cannot just reverse the judgment or acquit appellant. See TEX. CODE CRIM. PROC. ANN. art. 36.19 (West 2006) (stating that “[w]henever it appears by the record in any criminal action upon appeal that any requirement of Articles [relating to the charge of the court] has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of [the] defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial”). Rather, we remain obliged to determine whether the error or omission harmed him under Almanza. Reeves v. State, supra. If it did, then reversal is the appropriate remedy.

The crime of continuous sexual abuse occurs when, during a period of thirty or more days, a person commits two or more acts of sexual abuse and, at the time each act of sexual abuse was committed, the person was seventeen or older and the victim was younger than fourteen. TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2016). Assuming arguendo that omitting the element of the accused being seventeen or older from the charge is fundamental error, we note that appellant failed to object to it. Thus, the omission would warrant reversal only if we conclude that it caused appellant egregious harm, and we do not. See Reeves v. State, 420 S.W.3d at 816 (stating that if the appellant did not object to the charge error then he “must show that the error was ‘fundamental’ and that he suffered ‘egregious harm’ ”).

While the element in question was omitted from the application paragraph, the trial court included it in its definition of the crime appearing in the charge. That is, the trial court defined the crime of continuous sexual abuse in its charge. The abstract definition provided the jury included the statement that the accused had to be seventeen or older. That appellant was much older than seventeen when engaging in the sexual abuse is clear from the evidence of record. Furthermore, appellant's age was not an issue questioned by appellant. Under these circumstances, the alleged error did not cause appellant egregious harm.

Accordingly, the judgment of the trial court is affirmed.

FOOTNOTES

1.   Because this appeal was transferred from the Ninth Court of Appeals, we are obligated to apply its precedent when available in the event of a conflict between the precedents of that court and this court. See TEX. R. APP. P. 41.3.

Per Curiam