Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-25-00073-CR
Scott OTWELL,
Appellant
v.
The STATE of Texas,
Appellee
From the 218th Judicial District Court, Atascosa County, Texas
Trial Court No. 22-11-0416-CRA
Honorable Russell Wilson, Judge Presiding
Opinion by: Adrian A. Spears II, Justice
Sitting: Lori I. Valenzuela, Justice
Adrian A. Spears II, Justice
H. Todd McCray, Justice
Delivered and Filed: September 30, 2026
AFFIRMED
After a jury trial, Scott Otwell was found guilty of continuous sexual assault of a young
child and was sentenced to twenty-five years of imprisonment. On appeal, Otwell complains about
the jury charge and the trial court’s failure to conduct an inquiry into his ability to pay costs under
article 42.15 of the Texas Code of Criminal Procedure. We affirm.
04-25-00073-CR
JURY CHARGE
Otwell first complains that the trial court inadequately defined “intent” in the jury charge
as applicable under section 6.03(a) of the Texas Penal Code. See TEX. PENAL CODE § 6.03(a) (“A
person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of
his conduct when it is his conscious objective or desire to engage in the conduct or cause the
result.”). “In reviewing charge error, we must first determine whether error exists.” Druery v. State,
225 S.W.3d 491, 504 (Tex. Crim. App. 2007) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1985)). “If we find error, we must then determine whether the error caused sufficient
harm to require reversal.” Id. (citing Almanza, 686 S.W.2d at 171). “[T]he degree of harm
necessary for reversal depends upon whether the error was preserved.” Id. (citing Almanza, 686
S.W.2d at 171). “Error properly preserved by an objection to the charge will require reversal as
long as the error is not harmless.” Id. (citing Almanza, 686 S.W.2d at 171). The court of criminal
appeals has “interpreted this to mean that any harm, regardless of degree, is sufficient to require
reversal.” Id. “But when the charging error is not preserved, a greater degree of harm is required,
and this standard of harm is described as egregious harm.” Id. (citing Almanza, 686 S.W.2d at
171). “Errors that result in egregious harm are those affecting the ‘very basis of the case,’ ‘those
depriving the defendant of a valuable right’ or those that ‘vitally affect a defensive theory.’” Id.
(citing Almanza, 686 S.W.2d at 171). At trial, Otwell did not object to the lack of the definition of
“intent” in the jury charge; thus, to be reversible error, the record must show that any error in the
jury charge in omitting this definition resulted in egregious harm. See id.
Otwell was charged with continuous sexual assault of a child younger than fourteen years
of age. The indictment in this case alleged that Otwell did the following:
during a period that was 30 or more days in duration, to-wit: from on or about
January 1st of 2017 through January 1st of 2021, when the defendant was 17 years
-2-04-25-00073-CR
of age or older, commit two or more acts of sexual abuse against K.U., hereinafter
referred to as complainant, a child younger than 14 years of age, namely
an act constituting the offense of indecency with a child committed against
K.U., to wit: the defendant did touch the genitals of the complainant with intent
to arouse or gratify the sexual desire of any person, and
an act constituting the offense of indecency with a child committed against the
complainant, to wit: the defendant caused the hand of the complainant to contact
the genitals of the defendant.
To establish the offense of continuous sexual abuse of a young child, the State had to prove
that Otwell committed two or more acts of sexual abuse during a period that is thirty or more days
in duration and that at the time of each of the acts of sexual abuse, he was seventeen years of age
or older and the victim was a child younger than fourteen years of age. See TEX. PENAL CODE §
21.02. An “act of sexual abuse” includes indecency with a child by contact if the defendant
committed the offense in a manner other than by touching the child’s breasts. See id. §§
21.02(c)(2), (4); 21.11(a)(1). A defendant commits indecency with a child by contact if he engages
in sexual contact with the child or causes the child to engage in sexual contact. Id. § 21.11(a)(1).
The term “sexual contact” includes the following acts, if committed with the intent to arouse or
gratify the sexual desire of any person: touching by a person of the anus or any part of the genitals
of the child or touching of any part of the body of a child with the genitals of a person. Id. §
21.11(c).
“The purpose of a jury charge is to instruct the jurors on the law that is applicable to the
case.” Rachal v. State, 725 S.W.3d 152, 162 (Tex. App.—Fort Worth 2025, pet. ref’d). “A jury
charge must distinctly set forth the law applicable to the case and set out all the essential elements
of the offense.” Martin v. State, 200 S.W.3d 635, 639 (Tex. Crim. App. 2006); see TEX. CODE
CRIM. PROC. art. 36.14. In examining the jury charge for possible error, we “must examine the
charge as a whole instead of a series of isolated and unrelated statements.” Vasquez v. State, 389
-3-04-25-00073-CR
S.W.3d 361, 366 (Tex. Crim. App. 2012) (citation omitted). “A jury charge typically contains an
abstract portion and an application portion.” Rachal, 725 S.W.3d at 162. “The abstract paragraphs
serve as a glossary to help the jury understand the meaning of concepts and terms used in the
application paragraphs of the charge.” Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App.
2012). “The application paragraph is what explains to the jury, in concrete terms, how to apply the
law to the facts of the case.” Yzaguirre v. State, 394 S.W.3d 526, 530 (Tex. Crim. App. 2013).
The State urges in its brief that the trial court did not err in failing to give a definition of
“intentionally” under section 6.03 because the jury charge contained the proper culpable mental
state needed for the jury to find Otwell guilty of the predicate offense of indecency with a child.
We agree with the State.
The offense of continuous sexual abuse does not require proof of any other mens rea than
that required for the underlying acts of sexual abuse. See Lane v. State, 357 S.W.3d 770, 776 (Tex.
App.—Houston [14th Dist.] 2011, pet. ref’d) (explaining that the continuous sexual abuse statute
does not need to “prescribe some additional mental state because its actus reus is merely the
repeated commission of acts already requiring culpable mental states”). The underlying acts of
sexual abuse charged in this case are indecency with a child by contact. See TEX. PENAL CODE §
21.02(c); id. § 21.11(a)(1), (c). Indecency with a child by contact is a “nature of conduct” offense,
“meaning that the offense requires proof of the accused’s intent to engage in the proscribed contact
rather than an intent to bring about any particular result.” Smith v. State, 515 S.W.3d 423, 432
(Tex. App.—Houston [14th Dist.] 2017, pet. ref’d). The legislature “has prescribed a specific
culpable mental state to be applied to the conduct, namely ‘the intent to arouse or gratify the sexual
desire.’” Id. Thus, in a prosecution of continuous sexual abuse of a young child, when the acts of
sexual abuse alleged are indecency with a child, the only mental state required to be proven by the
-4-04-25-00073-CR
State is “the specific intent to arouse or gratify sexual desire.” Washington v. State, 930 S.W.2d
695, 699-700 (Tex. App.—El Paso 1996, no pet.). Any other definition of “intentionally” in the
jury charge is “superfluous.” Id. at 700.
Here, both the abstract and application portions of the jury charge correctly instructed the
jury that indecency with a child is an act of sexual abuse under the continuous sexual abuse of a
young child statute and that the specific intent required for indecency with a child is the intent to
arouse or gratify the sexual desire of any person. We reject Otwell’s argument that the trial court
was also required in the charge to instruct the jury on the definition of “intentionally” in section
6.03 of the Penal Code. See Smith, 515 S.W.3d at 432-33 (stating that the specific culpable mental
state applicable to indecency with a child is “the intent to arouse or gratify the sexual desire” and
“reject[ing] appellant’s argument that the charge is erroneous because it did not include an
additional mental state as to the act of touching”); Washington, 930 S.W.2d at 699 (stating that
because the indecency with a child statute provided the specific mental state to be applied to the
conduct, any additional definition of “intentionally” in the jury charge is “superfluous”). We
therefore find no error by the trial court in failing to include the definition of “intent” as argued by
Otwell on appeal.
Otwell also complains about the application portion of the charge with respect to the
offense of continuous sexual abuse of a young child, arguing that the trial court “merely cut and
pasted the law from the abstract portion, completely failed to apply the law to the facts, and
completely failed to state how [Otwell] allegedly committed the offense with the complainant
K.U., let alone even mention or refer to K.U. in the application portion.” The application paragraph
of the jury charge stated the following:
You must determine whether the state has proved, beyond a reasonable doubt, four
elements. The elements are that—
-5-04-25-00073-CR
1. the defendant, in Atascosa County, Texas, during a period between on or about
January 1st, 2017, and on or about January 1st, 2021, committed two or more
of the following alleged acts of sexual abuse:
The alleged acts of sexual abuse are that the defendant engaged in sexual
contact with another person. Sexual contact is an act of sexual abuse if the state
proves, beyond a reasonable doubt, three elements. The elements are that—
i) the defendant engaged in sexual contact with another person by—
a. any touching of the anus or any part of the genitals of the person; or
b. any touching of any part of the body of the person with the anus, or
any part of the genitals of the defendant; and
ii) the other person was a child younger than fourteen years old; and
iii) the defendant did this with the intent to arouse or gratify the sexual
desire of any person.
2. these acts were committed during a period that was thirty or more days in
duration; and
3. at the time of commission of each of the acts of sexual abuse the defendant was
seventeen years old or older; and
4. at the time of commission of each of the acts of sexual abuse the victim was a
child younger than fourteen years old.
You must all agree on elements 1, 2, 3, and 4 listed above.
With regard to element 1, you need not all agree on which specific acts of sexual
abuse were committed by the defendant or the exact date when those acts were
committed. You must, however, all agree that the defendant committed two or more
acts of sexual abuse.
With regard to element 2, you must all agree that at least thirty days passed
between the first and last acts of sexual abuse committed by the defendant.
With regard to element 4, it does not matter whether the defendant knew the
child was younger than fourteen years old at the time of the offense.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or
more of elements 1, 2, 3, and 4 listed above, you must find the defendant “not
guilty.”
If you all agree the state has proved, beyond a reasonable doubt, each of the
four elements listed above, you must find the defendant “guilty.”
-6-04-25-00073-CR
Otwell further argues that the abstract portion of the charge confused the jury by referring to
“another person” and “the person”:
A person commits the offense of continuous sexual abuse of a young child,
[r]egardless of whether the person knows the age of the child at a time of the
offense, if—
1. during a period that is thirty or more days in duration, the person commits
two or more acts of sexual abuse, regardless of whether the acts of sexual
abuse are committed against one or more victims; and
2. at the time of the commission of each of the acts of sexual abuse, the actor
is seventeen years old or older and the victim is a child younger than
fourteen years old.
Indecency with a child is an act of sexual abuse if the state proves, beyond a
reasonable doubt, three elements. The elements are that—
1) the defendant engaged in sexual contact with another person by—
a. any touching of the anus or any part of the genitals of the person;
b. or any touching of any part of the body of the person with the anus,
breast, 1 or any part of the genitals of the defendant; and
2) the other person was a child younger than seventeen years old; and
3) the defendant did this with the intent to arouse or gratify the sexual desire
of any person.
Sexual contact or touching, may be through clothing.
The offense is committed whether the child is of the same or opposite sex as the
person engaging in sexual contact.
Because Otwell did not raise any of these objections at trial, to be reversible error, the
record must show egregious harm. See Druery, 225 S.W.3d at 504. We assess harm “in light of
the entire jury charge, the state of the evidence, including contested issues and weight of [the]
probative evidence, the argument of counsel and any other relevant information revealed by the
record of the trial as a whole.” Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022)
1
The record reflects that the trial court read the jury charge to the jury. When the trial court reached this portion of the charge, it stated the following: “B, any touching of any part of the body of the person—ladies and gentlemen, I’m striking out breasts—with the anus or any part of the genitals of the defendant . . . .” The written jury charge reflects that the trial court crossed out the word “breast.” Otwell argues that because the trial court did not tell the jury what it meant when it stated it was “striking out breasts,” the jury must have been confused. We disagree with Otwell and conclude that the trial court’s crossing out the word “breast” in the written jury charge made clear to the jury that the jury was not to consider “breast” in determining whether Otwell committed continuous sexual abuse of a young child.
-7-04-25-00073-CR
(quoting Almanza, 686 S.W.2d at 171) (alteration in original). “An erroneous jury charge is
egregiously harmful if it affects the very basis of the case, deprives the accused of a valuable right,
or vitally affects a defensive theory.” Id. “A finding of egregious harm must be based on ‘actual
harm rather than theoretical harm.’” Id. (quoting Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim.
App. 2011)). “Egregious harm is a difficult standard to meet, and the analysis is a fact-specific
one.” Id.
Because the application paragraph failed to specifically name K.U. as the person with
whom the jury had to find Otwell engaged in sexual contact, the State concedes error on appeal.
However, it argues that the error is not reversible because the record fails to show Otwell suffered
egregious harm. We agree with the State.
In considering the jury charge as a whole, we conclude the charge correctly stated the
substantive law on continuous sexual abuse of a child and on the predicate offense of indecency
with a child. Although K.U. was not named in the application paragraph, the sentence immediately
preceding it did explicitly name K.U.: “But you may not convict the defendant of continuous
sexual abuse of a young child for any acts of sexual abuse that occurred before September 1, 2007,
the date that law went into effect, or after November 1, 2021, when KU was already fourteen.”
(emphasis added). Further, the evidence at trial was focused on sexual acts committed by Otwell
against K.U. There was no evidence that Otwell committed any sexually abusive act against any
other child, and the closing arguments were centered around only one victim, K.U. Thus, despite
Otwell’s argument that the jury was confused by the failure to name K.U. in the application
paragraph and by the abstract paragraph’s use of “another person” and “the person,” we conclude
that the only reasonable way the jury could have read the jury charge was that Otwell was accused
of engaging in sexual contact with K.U. and no other person.
-8-04-25-00073-CR
The state of the evidence further supports the conclusion that Otwell suffered no harm from
the application paragraph’s failure to state how Otwell touched K.U. The record reflects that the
mode of commission of the offense was not a contested issue at trial. Instead, the central issue the
jury had to resolve was whether two or more acts of sexual abuse occurred at all. During his
testimony, Otwell admitted to once having been asleep when his hand happened to be near K.U.’s
genitals. He denied intentionally touching K.U.’s genitals on that occasion, and he denied any
other conduct at any other time that could possibly be construed as sexual contact under the
indecency with a child statute. The record thus reflects that the focus of the jury was whether the
offense occurred at all and, accordingly, on the credibility of the witnesses. See Reed v. State, 421
S.W.3d 24, 30 (Tex. App.—Waco 2013, pet. ref’d) (rejecting appellant’s argument that he was
egregiously harmed by the charge’s failure to limit the definitions of “intentionally” and
“knowingly” to the relevant conduct elements of aggravated sexual assault because the state of the
evidence showed the contested issue was not focused on whether appellant possessed the culpable
mental state but was instead focused on the credulity of the child victim and whether the incident
occurred at all); Jones v. State, 229 S.W.3d 489, 494 (Tex. App.—Texarkana 2007, no pet.)
(holding that while the intent of the appellant in touching the child victim was part of the State’s
required proof, it was not a contested issue and thus the appellant “could not be egregiously harmed
by the definition of the intentional and knowing state of mind”). 2 The arguments of counsel also
reflect that the focus of the trial was on the credibility of the witnesses and whether the conduct
occurred at all.
2
We note that Otwell does not challenge the sufficiency of the evidence against him. It is well settled that a child complainant’s uncorroborated testimony is, alone, sufficient to sustain a conviction for indecency with a child. Chasco v. State, 568 S.W.3d 254, 258 (Tex. App.—Amarillo 2019, pet. ref’d).
-9-04-25-00073-CR
With regard to the final egregious harm factor, “any other information revealed by the
record of the trial,” this factor allows courts to consider “circumstances such as where the jury
rejected one count but convicted on all other counts,” or where the jury requests clarification on a
matter directly related to the jury charge error. Flores v. State, 513 S.W.3d 146, 161 (Tex. App.—
Houston [14th Dist.] 2016, pet. ref’d). Here, Otwell points to the jury sending out two notes, one
requesting the doctor’s testimony and another about K.U.’s statements in the SANE exam. The
trial court informed the jury that it must have “a disagreement about a particular statement of a
witness or a particular point” before the trial court could have the testimony read back to them.
The record does not show that these requests by the jury relate to the complaints about charge error
brought by Otwell. Therefore, in considering the jury charge as a whole, the state of the evidence,
including contested issues and the probative evidence, the arguments of counsel, and the two
questions asked by the jury, we conclude that the record does not demonstrate that Otwell was
egregiously harmed by error in the jury charge. See Alcoser, 663 S.W.3d at 165.
INQUIRY ABOUT ABILITY TO PAY COSTS
Finally, Otwell agues the trial court erred in failing to make an inquiry on the record
regarding his ability to pay costs pursuant to article 42.15 of the Texas Code of Criminal Procedure.
At trial, the jury determined Otwell should be sentenced to twenty-five years of imprisonment and
no fine. The trial court then imposed the sentence of twenty-five years “plus court cost[s].” The
trial court’s judgment reflects court costs in the amount of $315.00. The record reflects that the
trial court did not inquire on the record into Otwell’s ability to pay court costs and that Otwell did
not object to the trial court’s failure to make the inquiry.
- 10 -04-25-00073-CR
Article 42.15 requires a trial court to “inquire on the record whether the defendant has
sufficient resources or income to immediately pay all or part of the fine and costs.” TEX. CODE
CRIM. PROC. art. 42.15(a-1). In Cruz v. State, 698 S.W.3d 265, 271 (Tex. Crim. App. 2024), the
court of criminal appeals explained that the trial court’s inquiry under article 42.15 “is not
fundamental to the adjudicatory process, so it is forfeitable.” Thus, the court of criminal appeals
held that by not objecting to the trial court’s failure to make the inquiry, the appellant waived the
error. Id.
Otwell recognizes this precedent set by Cruz and concedes that he did not object to the
failure by the trial court to conduct an inquiry. He nonetheless argues that he brought the issue of
his indigency to the trial court’s attention when he filed his requests for free copies of the clerk’s
and reporter’s records. We decline to hold that the filing of a request for a free copy of a clerk’s
record or reporter’s record is sufficient to preserve error to the trial court’s failure to make an
inquiry under article 42.15. See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012)
(explaining that to preserve error for appeal, the objection at trial must comport with the issue on
appeal).
We therefore affirm the judgment of the trial court.
Adrian A. Spears II, Justice
DO NOT PUBLISH
- 11 -