Joshua Dornell Mayes v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-24-00153-CR

Joshua Dornell Mayes,
Appellant

v.

The State of Texas,
Appellee

On appeal from the
19th District Court of McLennan County, Texas
Judge Thomas C. West, presiding
Trial Court Cause No. 2020-1979-C1

JUSTICE SMITH delivered the opinion of the Court.

MEMORANDUM OPINION

A jury found Joshua Dornell Mayes guilty of continuous sexual abuse of

a child (count one) and indecency with a child by sexual contact (count two).

See TEX. PENAL CODE ANN. §§ 21.02, 21.11(a)(1). His punishment was assessed

at eighty years in prison on count one and at life in prison on count two. 1 In

1 Based on his plea of “true” to a prior sexual assault of a child conviction, Mayes’s punishment in

count two was automatically assessed at life in prison. See TEX. PENAL CODE ANN. § 12.42(c)(2).
one issue on appeal, Mayes argues that the trial court’s first main charge to

the jury contains several errors that caused him egregious harm. We affirm

the judgments of the trial court.

Background

Mayes was charged in count one of the indictment with the continuous

sexual abuse of “M.J.,” alleging predicate offenses of aggravated sexual assault

of a child and indecency with a child by sexual contact.2 See id. at §§ 21.02(b),

(c)(2), (c)(4). He was charged in count two with indecency with a child by

touching M.J.’s breast. Id. at §§ 21.11(a)(1), (c)(1).

From January of 2020 until March 9, 2020, eleven-year-old M.J. lived

with Mayes. After March 9, 2020, M.J. would alternate living with her mother

or with Mayes each week. At trial, M.J. recalled that Mayes began touching

her on her third or fourth visit. She testified that Mayes touched her “bottom

part” that she used “[t]o pee” in the “middle of the part” with his hands during

most of her visits, and that the last time he touched her in this manner was in

August of 2020. M.J. further testified to one instance of Mayes penetrating

her vagina with his penis and one instance of Mayes touching her breasts.

2 Count one of the indictment alleges that Mayes committed the predicate offense of aggravated sexual

assault of a child by causing M.J.’s sexual organ to contact his sexual organ. See id. at §
22.021(a)(1)(B)(iii). It further alleges that he committed the predicate offense of indecency with a child
by touching M.J.’s genitals with his hand. See id. at § 21.11(a)(1), (c)(1).

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Pursuant to article 38.37, section 2 of the Texas Code of Criminal

Procedure, the State also presented evidence of two prior extraneous sexual

offenses involving different victims – aggravated sexual assault of a child

committed against “D.B.” and sexual assault of a child committed against

“A.L.” See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2; TEX. PENAL CODE ANN.

§§ 22.011(a)(2)(A), 22.021(a)(1)(B)(i). The trial court held a hearing outside of

the jury’s presence at which D.B. briefly testified and State’s Exhibit 8 and

State’s Exhibit 9 were offered into evidence. See TEX. CODE CRIM. PROC. ANN.

art. 38.37, § 2-a. State’s Exhibit 8 contained several documents pertaining to

Mayes’s prior aggravated sexual assault of a child conviction involving D.B.,

including the indictment, judgment granting deferred adjudication probation,

motion to proceed with an adjudication of guilt, and judgment adjudicating

guilt. The allegations underlying this extraneous offense were that Mayes

penetrated the sexual organ of D.B. with his sexual organ.3 State’s Exhibit 9

contained the indictment and judgment of conviction for the offense of sexual

assault of a child involving A.L. Although A.L. did not testify at the hearing,

the indictment alleged that Mayes committed the offense by penetrating A.L.’s

sexual organ with his sexual organ. At the conclusion of the hearing, the trial

court found that the evidence was adequate to support a finding beyond a

3 D.B. later testified about this incident in front of the jury.

Joshua Dornell Mayes v. The State of Texas Page 3
reasonable doubt that each extraneous offense occurred, and admitted State’s

Exhibit 8 and State’s Exhibit 9 into evidence.

The record reflects, and Mayes concedes, that he did not object at trial to

any alleged error in the jury charge.4 No lesser-included offense instructions

or defensive instructions were requested.

Relevant Law

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 was 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).

4 At the charge conference, the parties reference an “informal” charge conference at which changes and

corrections may have been made to the proposed charge. We do not have a record of the informal
charge conference or of any changes that may have been made.

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The Court of Criminal Appeals has outlined four factors that reviewing

courts should consider when determining whether a jury-charge error resulted

in egregious harm: “1) the charge itself; 2) the state of the evidence including

contested issues and the weight of the probative evidence; 3) arguments of

counsel; and 4) any other relevant information revealed by the record of the

trial as a whole.” Olivas, 202 S.W.3d at 144.

Analysis

Though presented in a single issue on appeal, Mayes identifies multiple

alleged errors in the court’s first main jury charge. An issue is multifarious

when it raises more than one specific complaint, and we are permitted to reject

multifarious issues on that basis alone. Mays v. State, 318 S.W.3d 368, 385

(Tex. Crim. App. 2010); Wood v. State, 18 S.W.3d 642, 649 n. 6 (Tex. Crim. App.

2000). This issue is multifarious; however, in the interest of justice, we will

endeavor to address the arguments that we can discern.

1. OFFENSE LOCATION INCLUDED IN COUNT ONE’S APPLICATION PARAGRAPH

Mayes argues that the trial court erred by including the location of

McLennan County, Texas in the application paragraph for count one. He

contends that the State failed to specifically plead McLennan County as the

location of the offense in count one of the indictment, and that the jury charge

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therefore expanded the allegations of the State beyond what was pled. We

disagree.

Count One of the indictment states, in relevant part, “The Grand Jurors

of McLennan County, State of Texas, duly organized at the July Term, A.D.,

2023, of the 19th Judicial District Court of said county, upon their oaths do

present that JOSHUA DORNELL MAYES, hereinafter called Defendant, did

then and there,” commit the offense of continuous sexual abuse of a child. The

words “then and there” in charging instruments are words of reference. See

Ex parte Hunter, 604 S.W.2d 188, 190 (Tex. Crim. App. 1980). In this

indictment, “then and there” refers back to “McLennan County, State of

Texas.” This language is sufficient to allege the place of an offense. See id.;

Madkins v. State, 241 S.W.2d 151 (Tex. Crim. App. 1951). Because the

indictment sufficiently alleged McLennan County as the place of the offense in

count one, inclusion of McLennan County in count one’s application paragraph

was not error.

2. ABSTRACT DEFINITION OF AGGRAVATED SEXUAL ASSAULT OF A CHILD

The abstract section of the jury charge provided that a person commits

the offense of aggravated sexual assault of a child if he “intentionally or

knowingly causes the sexual organ of a child to contact or penetrate the mouth,

anus, or sexual organ of another person, including the actor[.]” See TEX. PENAL

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CODE ANN. § 22.021(a)(1)(B)(iii). Mayes contends that this abstract definition

improperly expanded the State’s pled allegations and confused, misled, or

excited the passions of the jury. He argues that because evidence of the

aggravated sexual assault of M.J. was limited to Mayes’s sexual organ

contacting M.J.’s sexual organ, the trial court should have omitted the

language in the abstract definition about the mouth and anus.

The abstract portions of a jury charge merely serve as a glossary to aid

the jury in their understanding of concepts and terms contained in the

application paragraph. Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim.

App. 2012) (citing Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996),

overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App.

1997)). The application paragraph applies the “pertinent penal law, abstract

definitions, and general legal principles to the particular facts and the

indictment allegations.” Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim.

App. 2012). An abstract charge on a theory of law that is not applied to the

facts does not authorize the jury to convict on that theory. Crenshaw, 378

S.W.3d at 466 (citing Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim. App.

1996)). “Generally, reversible error occurs in the giving of an abstract

instruction only when the instruction is an incorrect or misleading statement

Joshua Dornell Mayes v. The State of Texas Page 7
of a law that the jury must understand in order to implement the commands

of the application paragraph.” Id.

Here, the abstract definition of aggravated sexual assault of a child

followed the statutory language for the offense found in section

22.021(a)(1)(B)(iii). See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii). The

application paragraph for count one tracked the language of the indictment,

limiting the jury’s consideration of the predicate offense of aggravated sexual

assault of a child solely to whether Mayes caused M.J.’s sexual organ to contact

his sexual organ. Because the abstract definition regarding contact with or

penetration of the mouth or anus was not applied to the facts of this case, the

jury was not authorized to convict on those theories. The jury is presumed to

have understood and followed the court’s charge, absent evidence to the

contrary. See Hutch, 922 S.W.2d at 172; Crenshaw, 378 S.W.3d at 467

(presuming the jury convicted appellant on the theory of law as restricted by

application paragraph, despite the full penal code definition included in

abstract section).5

5 Within this argument, Mayes also discusses the abstract definition of aggravated sexual assault of a

child as it relates to the extraneous-offense evidence of his aggravated sexual assault of D.B. He
argues that because the article 38.37, section 2 limiting instruction did not specifically apply the
abstract definition of aggravated sexual assault of a child to the facts of the extraneous aggravated
sexual assault of D.B., the jury charge “expanded the State’s allegation beyond what was pled.” See
TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii); TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2. We address
this argument within our analysis in Section 3B below.

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We find no jury charge error in the abstract definition of aggravated

sexual assault of a child.

3. ARTICLE 38.37 INSTRUCTION

The court’s first main charge to the jury included the following

instruction:

You are instructed that if there is any testimony and evidence that
the Defendant has committed a separate offense other than the
one alleged against him in the indictment in this case, specifically,
Aggravated Sexual Assault of a Child or Sexual Assault of a Child,
you cannot consider said testimony and evidence for any purpose
unless you first find and believe beyond a reasonable doubt that
the Defendant committed such other offense. If you do find beyond
a reasonable doubt that the Defendant committed such other acts,
you may consider that testimony and evidence for any bearing that
it has on relevant matters, including the character of the
Defendant and acts performed in conformity with the character of
the Defendant.

On appeal, Mayes offers several arguments as to why this instruction was

erroneous, depending upon whether the instruction is interpreted as a lesser-

included offense instruction of count one or as an article 38.37, section 2

limiting instruction regarding the extraneous sexual offenses. See TEX. CODE

CRIM. PROC. ANN. art. 38.37, § 2.

A. Lesser-Included Offense Instruction

In some of his arguments on appeal, Mayes mistakenly characterizes

this instruction as an application paragraph for lesser-included offenses of

count one; namely, aggravated sexual assault of a child and sexual assault of

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a child committed against M.J. Based on this interpretation, he argues that

this instruction should have limited the manner and means of committing the

lesser-included offenses solely to Mayes’s sexual organ contacting M.J.’s sexual

organ, as pled in count one of the indictment. Failure to so limit the

instruction, he argues, would allow the jury to convict him of the lesser-

included offenses “on alternative methods which were not pled by the State.”

As Mayes acknowledges, the parties did not request inclusion of any

lesser-included offense instructions in the jury charge. Further, there is no

indication in the record that the trial court sua sponte included any lesser-

included offense instructions for count one. The charge itself does not include

instructions explaining to the jury when to consider any lesser-included

offenses, nor does it include verdict forms permitting the jury to find Mayes

guilty or not guilty of lesser-included offenses. This instruction is not an

application paragraph for lesser-included offenses involving M.J.; rather, this

is an article 38.37, section 2 limiting instruction addressing the extraneous-

offense evidence of Mayes’s aggravated sexual assault of D.B. and sexual

assault of A.L. See id. This instruction tracks the requirements of article

38.37, section 2, permitting consideration of certain extraneous sexual offenses

for “any bearing the evidence has on relevant matters” if the jury finds beyond

a reasonable doubt that the offenses were committed. Mayes’s arguments

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characterizing this instruction as an erroneous lesser-included offense

application paragraph are without merit.

B. Article 38.37, Section 2 Limiting Instruction

In some of his arguments, Mayes acknowledges that this instruction may

have been included as an article 38.37, section 2 limiting instruction. See id.

Based on that interpretation, he argues that the trial court was required to

limit the jury’s consideration of the extraneous offenses to the manner and

means addressed at trial; namely, that Mayes’s sexual organ penetrated D.B.’s

sexual organ, and that Mayes’s sexual organ penetrated A.L.’s sexual organ.

Each case cited by Mayes in support of this argument involves the jury

instructions for the primary offense or a lesser-included offense for which the

defendant was on trial.6 Mayes has not cited to any authority addressing what

limitations, if any, should be placed on the manner and means alleged in an

extraneous-offense instruction under article 38.37 of the Texas Code of

Criminal Procedure. See Pugh v. State, No. 06-14-00066-CR, 2015 WL

1699925, at *5 (Tex. App.—Texarkana Apr. 15, 2015, pet. ref’d) (mem. op., not

designated for publication) (rejecting the argument that a jury charge must

6 See Alvarado v. State, 704 S.W.2d 36 (Tex. Crim. App. 1985) (failure to limit definitions of culpable

mental states to result-of-conduct on injury to a child charge); Kelly v. State, 748 S.W.2d 236 (Tex.
Crim. App. 1988) (applying Alvarado holding to injury to elderly charge); Delarosa v. State, 677 S.W.3d
668 (Tex. Crim. App. 2023); (evidence legally insufficient to support conviction for sexual assault of a
child where indictment alleged only non-consensual sexual assault); Castillo v. State, 7 S.W.3d 253
(Tex. App.—Austin 1999, pet. ref’d) (lesser-included offense instruction upon which appellant’s
conviction was based included an unpled manner and means for committing the offense).

Joshua Dornell Mayes v. The State of Texas Page 11
contain an application paragraph for each extraneous offense that the State

offered under article 38.37).7

Even so, because Mayes failed to object to the jury charge, he

acknowledges that the egregious-harm standard applies. We note that Mayes

does not contend that the evidence was insufficient for the jury to find beyond

a reasonable doubt that the extraneous offenses were committed. His concern

is based upon the jury’s ability to theoretically consider ways in which the

extraneous offenses were committed but on which no evidence was presented.

He does not point to evidence of any actual harm, and no one contested that he

committed these extraneous offenses at trial. During closing arguments,

Mayes’s trial counsel conceded that Mayes committed both extraneous offenses

while urging the jury to consider Mayes’s young age at the time of those

offenses. Further, documents contained within State’s Exhibit 8 and State’s

Exhibit 9 show that he pled guilty to each extraneous offense, and they identify

the specific manner and means to which he pled guilty. We find that Mayes

was not egregiously harmed by error, if any, in the article 38.37 limiting

instruction.

7 While unpublished or memorandum opinions are not binding precedent, such opinions may be
considered as persuasive authority. See Carillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo
2003, pet. ref’d).

Joshua Dornell Mayes v. The State of Texas Page 12
4. OMISSION OF SEXUAL ASSAULT OF A CHILD ABSTRACT DEFINITION

Finally, Mayes complains that the trial court erred by failing to include

an abstract definition for the offense of sexual assault of a child. See TEX.

PENAL CODE ANN. § 22.011(a)(2). He argues that this omission left the jury

without the necessary definition to determine whether (A) he committed the

lesser-included offense of sexual assault of a child against M.J., or (B) he

committed the extraneous sexual assault of A.L.

As discussed supra, sexual assault of a child was not included in the jury

charge as a lesser-included offense against M.J. for count one. Therefore, it

was not error to omit an abstract definition of sexual assault of a child for this

reason. Further, Mayes does not cite to any relevant authority supporting his

position that a trial court is required to include in the jury charge an abstract

definition for extraneous offenses. We further find that, for the reasons

discussed in Section 3B above, Mayes was not egregiously harmed by the

omission of an abstract definition for sexual assault of a child for the

extraneous sexual assault of A.L.

We overrule Mayes’s sole issue on appeal.

Conclusion

Having overruled Mayes’s sole issue on appeal, we affirm the trial court’s

judgments in count one and count two.

Joshua Dornell Mayes v. The State of Texas Page 13
STEVE SMITH
Justice

OPINION DELIVERED and FILED: August 21, 2025
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
Do not publish
CRPM

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