Darnell Penson v. The State of Texas — Memorandum Opinion by Chief Justice Stevens

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

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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).

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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.

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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

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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

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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.”

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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

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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

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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.

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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.

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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

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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

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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

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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