Darnell Penson v. The State of Texas — Memorandum Opinion by Chief Justice Stevens
Darnell Penson v. The State of Texas — Memorandum Opinion by Chief Justice Stevens
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In the Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-25-00156-CR DARNELL PENSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 16th District Court Denton County, Texas Trial Court No. F23-3692-16 Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Chief Justice Stevens
2 MEMORANDUM OPINION A Denton County jury found Darnell Penson guilty of aggravated sexual assault, a first- degree felony, and sentenced him to sixty years’ confinement.1 On appeal, Penson argues that the trial court’s refusal of his requested jury instruction violated his due process rights regarding judicial bias and fundamental fairness, violated his right to jury unanimity, and was not a proper jury charge pursuant to Article 36.14 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 36.14. Penson also argues that his punishment is grossly disproportionate and violates the objectives of the Texas Penal Code. For the reasons below, we affirm the trial court’s judgment. I. Background Penson met Rachel2 on a dating site and invited her to a small party at his apartment. Rachel consumed alcohol and passed out later that evening. While she was unconscious, Penson sexually assaulted Rachel at least twice, as did at least one other man at the party. Penson video recorded one of the assaults on his cellphone. Rachel awoke around noon the next day to Penson having sex with her. Rachel testified that she asked Penson if others had also had sex with her, and Penson said that they had. The assaults were also discussed in Penson’s text message in a group chat among his friends. 1Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Supp.). We follow the precedent of the Second Court of Appeals in deciding the issues presented. See TEX. R. APP. P. 41.3. 2We use a pseudonym to protect the identity of the victim. See TEX. CONST. art. I, § 30(a)(1) (conferring crime victims with “the right to be treated with fairness and with respect to the victim’s dignity and privacy throughout the criminal justice process”); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
3 A sexual-assault examination was performed at a local hospital, and the police were contacted. Penson admitted to Natanael Willingham, a detective with the Carrollton Police Department, to having sex with Rachel multiple times while she was unconscious. Penson was charged with aggravated sexual assault. A jury convicted Penson and assessed his punishment at sixty years’ confinement and a $10,000.00 fine. Penson moved for a new trial and noticed his appeal. II. Jury-Charge Error Penson challenges the reasonable-doubt instruction in the jury charge. At the charge conference, and in a written request, Penson requested a definition of “clear and convincing evidence” to be included in the jury charge. Penson argued that, because Fuller v. State allows counsel to discuss clear and convincing evidence during voir dire, it follows that the jury charge similarly includes the same distinction. See Fuller v. State, 363 S.W.3d 583, 585 (Tex. Crim. App. 2012). Penson further argued that, should the trial court decline to include the “clear and convincing evidence” definition, then the trial court should likewise omit the “beyond all doubt” language. The trial court declined to include the requested “clear and convincing evidence” definition and included the “beyond all possible doubt” language. The given instruction read, in relevant part: The [State] has the burden of proving [Penson] guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt and if it fails to do so, you must find [Penson] not guilty. It is not required that the [State] proves guilt beyond all possible doubt; it is required that the [State’s] proof excludes all “reasonable doubt” concerning [Penson’s] guilt.
4 The trial court must deliver to the jury “a written charge distinctly setting forth the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14. The “law applicable to the case” includes “all of the law applicable to the criminal offense that is set out in the indictment or information,” as well as “general admonishments, including reference to the presumption of innocence, proof beyond a reasonable doubt, unanimity of the verdict, and so forth.” Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007). “We review alleged jury charge error in two steps: first, we determine whether error exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal.” Bluntson v. State, 728 S.W.3d 87, 142 (Tex. Crim. App. 2025), cert. denied, 146 S.Ct. 1819 (2026) (citing Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022); Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005)). “The degree of harm required for reversal depends on whether the jury charge error was brought to the trial court’s attention.” Id. (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g), superseded on other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988) (“setting forth standards of appellate review for jury charge error”)). “If the alleged error was raised by an objection or request for an instruction, . . . the record need only show ‘some harm’ to obtain relief . . . .” Id. (quoting Alcoser, 663 S.W.3d at 165) (citing Almanza, 686 S.W.2d at 171). In his first five issues, Penson argues that the trial court’s refusal of his requested definition and use of the given instruction violated (1–2) his right to due process of law regarding judicial bias, (3) his right to due process of law regarding fundamental fairness, (4) his right to
5 jury unanimity under the Texas Constitution, and (5) the jury charge was not proper pursuant to Article 36.14. Our sister courts have reviewed these arguments across several cases and have consistently ruled against Penson’s points of error regarding his requested jury instruction. See Mengistu v. State, No. 05-25-00862-CR, 2026 WL 1739509, at *8 (Tex. App.—Dallas June 16, 2026, no pet.) (mem. op., not designated for publication) (citing Johnson v. State, No. 05-24- 01019-CR, 2026 WL 508801, at *9 (Tex. App.—Dallas Feb. 23, 2026, pet. ref’d) (mem. op., not designated for publication) (“we conclude that the trial court did not err in denying appellant’s requests as to the ‘all possible doubt’ and ‘clear and convincing evidence’ language in the jury charge”); Allen v. State, No. 05-24-01180-CR, 2025 WL 3246208, at *4 (Tex. App.—Dallas Nov. 20, 2025, pet. ref’d) (mem. op., not designated for publication) (“rejecting the argument that the jury’s unanimity requirement was violated because the charge did not include the definition of clear and convincing and therefore failed to inform the jury of ‘the substantive meaning of beyond-a-reasonable-doubt lower parameter’”); Baca v. State, No. 05-22-01008-CR, 2023 WL 3735073, at *1 (Tex. App.—Dallas May 31, 2023, pet. ref’d) (mem. op., not designated for publication) (“we conclude the trial court did not err in excluding from the jury charge a definition of ‘clear and convincing evidence’ and an instruction regarding the State’s beyond-a-reasonable-doubt burden of proof”)); see Powell v. State, No. 12-25-00025-CR, 2026 WL 113663, at *6 (Tex. App.—Tyler Jan. 14, 2026, pet. ref’d) (mem. op., not designated for publication). In each of those cases, the appellant cited Fuller to argue that, because the Texas Court of Criminal Appeals held that it was reversible error to limit defense counsel from
6 discussing the lower parameter of “beyond a reasonable doubt,” that is, “clear and convincing evidence,” during voir dire, then it is likewise reversible error to limit defense counsel from including this lower parameter within the jury instructions. We address each of Penson’s points in turn. A. Due Process Regarding Judicial Bias “A criminal defendant has a due process right to proceed before an impartial court.” Bluntson, 728 S.W.3d at 116 (citing Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973); Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006)). “When a claim of judicial bias is raised, we review the entire record to determine if it shows the judge’s bias or prejudice denied the defendant due process.” Tovar v. State, 619 S.W.3d 783, 792 (Tex. App.—San Antonio 2020, pet. ref’d). Unfavorable rulings do not alone show judicial bias or prejudice; rather, the judicial ruling must “connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess . . . or because it is excessive in degree.” Id. (quoting Abdygapparova v. State, 243 S.W.3d 191, 198 (Tex. App.—San Antonio 2007, pet ref’d) (quoting Liteky v. United States, 510 U.S. 540, 550 (1994))). “Absent a strong showing to the contrary, we presume the trial judge was neutral and impartial.” Id. Here, there is no such strong showing. Penson, in two points of error, argues judicial bias stems from submitting the given jury instruction and by refusing to submit a jury instruction that contains a definition for “clear and convincing evidence.” Penson concedes that he wants to “get the law changed,” and that “no case . . . states [he is] entitled to what [he is] asking for.”
7 The Texas Court of Criminal Appeals recently reaffirmed that the complained-of instruction is not erroneous. See Bluntson, 728 S.W.3d at 143. In Bluntson, the appellant argued that a sentence in the charge “informing the jury that the prosecution need not prove guilt ‘beyond all possible doubt’ . . . violated his Fourteenth Amendment right to due process.” Id. The Texas Court of Criminal Appeals disagreed and held that “submitting language identical to the language presented in the jury charge here” was not an abuse of discretion. Id. at 144. Thus, the trial court did not rule inappropriately or base its actions on improper knowledge or sources. Rather, the trial court followed current precedent. We, therefore, overrule Penson’s first and second points of error. B. Due Process Regarding Fundamental Fairness Penson argues that “the fundamental fairness of due process requires that trial [courts] not submit jury charges that lead a jury to convict on a lesser showing than due process requires.” Penson cites Victor v. Nebraska, where the United States Supreme Court held that the charge must not be structured “so as to lead the jury to convict on a lesser showing than due process requires.” Victor v. Nebraska, 511 U.S. 1, 22 (1994). Even so, in the same case, the United States Supreme Court held that “the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course.” Id. at 5. Consistent with Victor, the Texas Court of Criminal Appeals has repeatedly “held that giving this same instruction to the jury in a capital murder trial was not an abuse of discretion.” Mays v. State, 318 S.W.3d 368, 389 (Tex. Crim. App. 2010) (citing Woods v. State, 152 S.W.3d
8 105, 115 (Tex. Crim. App. 2004)); see Bluntson, 728 S.W.3d at 143. The Texas Court of Criminal Appeals has concluded, [w]hile we have stated that “the better practice is to give no definition of reasonable doubt at all to the jury” we have explicitly held, on multiple occasions, that a trial court does not abuse its discretion in submitting language identical to the language presented in the jury charge here. Bluntson, 728 S.W.3d at 144 (citation omitted) (quoting Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000) (citing Woods, 152 S.W.3d at 114–15)). Based on the foregoing, we conclude the reasonable doubt instruction in the charge did not violate Penson’s right to due process of law. We overrule Penson’s third point of error. C. Jury Unanimity Penson’s fourth point of error alleges the unanimity requirement was violated because the charge did not include the definition of “clear and convincing” evidence, and therefore “failed to inform [the jury] of the substantive meaning of beyond-a-reasonable-doubt’s lower parameter.” A defendant in a criminal trial in Texas has the right to a unanimous jury verdict on each element of the charged offense. TEX. CONST. art. V, § 13; TEX. CODE CRIM. PROC. ANN. art. 36.29(a) (Supp.). As such, “every juror [must] agree[] that the defendant committed the same, single, specific criminal act.” Ngo, 175 S.W.3d at 745. Penson cites Stuhler v. State, in support of his argument that since jurors must be in substantial agreement concerning a defendant’s course of action, it follows that they must also be in agreement concerning “the level of beyond a reasonable doubt.” See Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007). Stuhler held that unanimity is required: (1) on each
9 element of the offense, and (2) on which distinct criminal acts the defendant committed when more than one is alleged to obtain a single conviction. Id. at 716–17. However, “[n]othing in Stuhler or any other [referenced] case provides that defining or referencing other inapplicable burdens of proof is required to put the reasonable doubt standard in context for the jury.” Allen, 2025 WL 3246208, at *4. Here, the charge informed the jury that its decision must be unanimous. The charge also informed the jury that the State was required to prove each and every element of the offense beyond a reasonable doubt. “Read as a whole, the charge left no uncertainty that unanimity was required to convict [Penson] of the charged offense upon proof beyond a reasonable doubt.” Id. As a result, we find that the trial court’s refusal of Penson’s proposed reasonable-doubt instruction did not result in a charge that violated Penson’s right to a unanimous verdict. We overrule Penson’s fourth point of error. D. Article 36.14 In Penson’s fifth issue, he claims that the trial court’s “charge violated [his] rights under [Article] 36.14 because Fuller made clear that the jury’s proper application of the State’s beyond-a-reasonable-doubt burden of proof was an issue in every criminal case and [Article] 36.14 entitled [him] to a jury instruction on every issue involved in the case.” The trial court must instruct the jury on “the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14. Therefore, “[t]he charge ‘must contain an accurate statement of the law and must set out all essential elements of the offense.’” Alkayyali v. State, 713 S.W.3d 780, 790 (Tex. Crim App. 2025) (quoting Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App.
10 2012)). “A jury charge which tracks the language of a particular statute is a proper charge on the statutory issue.” Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994); see Casey v. State, 215 S.W.3d 870, 886–87 (Tex. Crim. App. 2007) (concluding that the charge properly “set forth the law applicable to the case by tracking language of the statute). Penson points out that “a jury charge must include instructions informing the jurors ‘“under what circumstances they should convict, or under what circumstances they should acquit”[].’” Alcoser, 663 S.W.3d at 165 (quoting Ex parte Chandler, 719 S.W.2d 602, 606 (Tex. Crim. App. 1986) (per curiam) (orig. proceeding) (Clinton, J., dissenting)). That said, Fuller does not require the trial court to include an instruction in its charge that clear and convincing evidence constitutes the lower parameter of the State’s “beyond a reasonable doubt” burden of proof. See Fuller, 363 S.W.3d at 587. As discussed in the cases similarly argued as Penson’s, “the State’s burden of proof does not constitute an element of the offense; rather, the burden of proof is the State’s obligation to establish each and every element of the charged offense.” Powell, 2026 WL 113663, *5 (citing BLACK’S LAW DICTIONARY 243 (12th ed. 2024) (“defining ‘burden of proof’ as a ‘party’s duty to prove a disputed assertion or charge; a proposition regarding which of two contending litigants loses when there is no evidence on a question or when the answer is simply too difficult to find.’”)). “The trial court’s charge set forth the law applicable to [Penson’s] case, accurately set forth the State’s burden of proof and the presumption of [Penson’s] innocence, and tracked the language of the relevant statutes.” Id. at *6 (citing TEX. CODE CRIM. PROC. ANN. art. 36.14). We, therefore, conclude that there was no error in the charge.
11 We overrule Penson’s fifth point of error. III. Punishment Error Penson, in a second set of points of error, alleges that his sentence is grossly disproportionate and runs afoul of the intentions of the Texas Penal Code. “We review a trial court’s punishment decision for an abuse of discretion.” Garcia v. State, No. 02-23-00097-CR, 2023 WL 8467492, at *1 (Tex. App.—Fort Worth, Dec. 7, 2023, no pet.) (mem. op., not designated for publication) (citing Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984)). “The general rule is that a trial court does not abuse its discretion if the sentence is within the statutory punishment range.” Id. (citing Jackson, 680 S.W.2d at 814). “[A] trial court has ‘essentially “unfettered”’ discretion to impose any sentence within the prescribed statutory range . . . .” Id. (citations omitted) (quoting Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006) (orig. proceeding) (quoting Miller-El v. State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990)). Moreover, “any sentence within the statutory limits is virtually ‘unassailable’ on appeal provided that it is based upon the sentencer’s informed normative judgment.” Id. (quoting Ex parte Chavez, 213 S.W.3d at 324). The range of punishment for a first-degree felony is imprisonment for any term of not less than five years or up to ninety-nine years in the Texas Department of Criminal Justice. TEX. PENAL CODE ANN. § 12.32(a). A. Disproportionate Punishment “An allegation of disproportionate punishment is a valid legal claim.” State v. Simpson, 488 S.W.3d 318, 322 (Tex. Crim. App. 2016). “The concept of proportionality is embodied in
12 the [United States] Constitution’s ban on cruel and unusual punishment and requires that punishment be graduated and proportioned to the offense.” Id. (citing U.S. CONST. amend. VIII). The Texas Court of Criminal Appeals has held that punishment assessed within the statutory limits, including punishment enhanced pursuant to a habitual-offender statute, is not excessive, cruel, or unusual. Ex parte Chavez, 213 S.W.3d at 323–24. To determine whether a sentence for a term of years is grossly disproportionate for a particular defendant’s crime, a court must judge the severity of the sentence in light of the harm caused or threatened to the victim, the culpability of the offender, and the offender’s prior adjudicated and unadjudicated offenses. Simpson, 488 S.W.3d at 323 (citing Graham v. Florida, 560 U.S. 48, 60 (2010)). “In the rare case in which this threshold comparison leads to an inference of gross disproportionality, the court should then compare the defendant’s sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions.” Id. (citing Graham, 560 U.S. at 60). “If this comparative analysis validates an initial judgment that the sentence is grossly disproportionate, the sentence is cruel and unusual.” Id. (citing Graham, 560 U.S. at 60). The jury found Penson guilty of aggravated sexual assault and assessed punishment at sixty years’ confinement. The trial court overruled Penson’s objections and imposed a sentence in accordance with the jury’s verdict. The trial court’s sentence in this case falls squarely within the statutorily prescribed range, as Penson faced up to ninety-nine years’ imprisonment. Penson notes his lack of criminal history and his assessment that Rachel lacked credibility. The assessment of the situation rings hollow given what the jury likely saw as
13 premeditation and planning that went into the aggravated sexual assault, Penson’s lack of remorse, the consequences to Rachel, and many other factors. While it appears true that Penson did not have a violent-criminal history prior to this offense, the jury and the trial court made the reasonable conclusion based on the record and the credibility of the witnesses that this was a violent, serious crime meriting a hefty prison sentence within the guidelines, regardless of the relative absence of any extraneous bad acts. As noted above, the appropriate standard of review requires deference to the trial court’s decision-making in this regard. Id. at 322. We overrule Penson’s sixth point of error. B. Texas Penal Code Objectives “Section 1.02 states that the general purposes of the Texas Penal Code are ‘to establish a system of prohibitions, penalties, and correctional measures to deal with conduct that unjustifiably and inexcusably causes or threatens harm to those individual or public interests for which state protection is appropriate.’” Fisk v. State, 574 S.W.3d 917, 924 (Tex. Crim. App. 2019) (quoting TEX. PENAL CODE ANN. § 1.02). “To serve those purposes, Section 1.02 provides that the code shall be construed to achieve certain objectives, one of which, . . . is ‘to prescribe penalties that are proportionate to the seriousness of offenses and that permit recognition of differences in rehabilitation possibilities among individual offenders.’” Id. (quoting TEX. PENAL CODE ANN. § 1.02(3)). Penson argues that because he presented evidence showing that he (1) had no prior criminal record, (2) alleged Rachel lacked credibility, and (3) could benefit from rehabilitative justice, the trial court abused its discretion by sentencing him to confinement for sixty years. As
14 the Texas Court of Criminal Appeals has recognized, a trial court’s decision regarding what sentence to impose is a “normative process, not intrinsically factbound.” Ex parte Chavez, 213 S.W.3d at 323 (quoting Sunbury v. State, 88 S.W.3d 229, 233 (Tex. Crim. App. 2002)). Even assuming that specific evidence was needed to support the imposed sentence, we cannot conclude that the trial court abused its discretion. The State presented evidence showing Penson’s premeditation, lack of remorse, the consequences to Rachel, and other factors supporting the sentence. Given the egregious nature of Penson’s offense, we cannot say that his sentence violates the Texas Penal Code’s objectives to ensure public safety by deterring and preventing the recurrence of criminal behavior. See TEX. PENAL CODE ANN. § 1.02(1)(A), (C); Marquez-Ortiz v. State, No. 11-21-00196-CR, 2023 WL 3513188, at *3 (Tex. App.—Eastland May 18, 2023, no pet.) (mem. op., not designated for publication). Because Penson’s sentence falls within the prescribed statutory range and does not violate the Texas Penal Code’s objectives, the trial court did not abuse its discretion. See TEX. PENAL CODE ANN. § 1.02(1); Marquez-Ortiz, 2023 WL 3513188, at *3. We overrule Penson’s seventh point of error. IV. Conclusion We affirm the judgment of the trial court. Scott E. Stevens Chief Justice Date Submitted: July 3, 2026 Date Decided: October 15, 2026 Do Not Publish
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