Caballero v. State, 927 S.W.2d 128 (Tex. App. 1996). · Go Syfert
Caballero v. State, 927 S.W.2d 128 (Tex. App. 1996). Cases Citing This Book View Copy Cite
51 citation events (40 in the last 25 years) across 4 distinct courts.
Strongest positive: Jose Alberto Rodriguez v. the State of Texas (texapp, 2025-05-13)
Treatment trajectory · 1996 → 2026 · click a year to view as-of
1996 2011 2026
Top citers, strongest first. 26 distinct citers. How cited ↗
cited Cited as authority (rule) Jose Alberto Rodriguez v. the State of Texas
Tex. App. · 2025 · confidence medium
Caballero v. State, 927 S.W.2d 128, 130 (Tex. App.—El Paso 1996, pet. ref’d).
discussed Cited as authority (rule) Robert Rene Lopez v. the State of Texas
Tex. App. · 2025 · confidence medium
Section 21.11(c)(1) includes a requirement that the touching occur with the specific intent to “arouse or gratify the sexual desire of any person” in recognition that “legitimate, non-criminal, contact may occur between parents, nurses, doctors, or other care-givers and a child, particularly a young child, on the relevant body 8 parts.” Caballero v. State, 927 S.W.2d 128, 130 (Tex. App.—El Paso 1996, pet. ref’d).
examined Cited as authority (rule) Sergio Alvarado v. the State of Texas (3×) also: Cited "see"
Tex. App. · 2024 · confidence medium
The offense includes the requirement that the touching occur with the intent to arouse or gratify the sexual desire of any person because “legitimate, non- criminal, contact may occur between parents, nurses, doctors, or other care-givers and a child, particularly a young child, on the relevant body parts.” Caballero v. 11 State, 927 S.W.2d 128, 130 (Tex. App.—El Paso 1996, pet. ref’d).
discussed Cited as authority (rule) Paul Darvin McDaniel v. State
Tex. App. · 2019 · confidence medium
App. 2007); Underwood v. State, 176 S.W.3d 635, 642 (Tex. App.—El Paso 2005, pet. ref’d) (“However, this Court has determined that indecency with a child is a ‘nature of the conduct’ offense.” (citing Washington v. State, 930 S.W.2d 695, 699 (Tex. App.—El Paso 1996, no pet.); Caballero v. State, 927 S.W.2d 128, 131 (Tex. App.—El Paso 1996, pet. ref’d))).
discussed Cited as authority (rule) Alberto Pena v. State (2×) also: Cited "see"
Tex. App. · 2019 · confidence medium
Caballero v. State, 927 S.W.2d 128, 130 (Tex. App.—El Paso 1996, pet. ref’d).
cited Cited as authority (rule) Roach, Chance
Tex. · 2015 · confidence medium
App. 1988) (murder is a result-of-the-conduct offense); Caballero v. State, 927 S.W.2d 128, 130 (Tex. App.—El 8 Paso 1996, pet. ref'd) (indecency is a nature-of-the-conduct offense).
cited Cited as authority (rule) Underwood v. State
Tex. App. · 2005 · confidence medium
Washington v. State, 930 S.W.2d 695, 699 (Tex.App.-El Paso 1996, no pet.); Caballero v. State, 927 S.W.2d 128, 131 (Tex.App.-El Paso 1996, pet. ref’d).
cited Cited as authority (rule) Trisha Underwood v. State
Tex. App. · 2005 · confidence medium
Washington v. State, 930 S.W.2d 695, 699 (Tex. App.--El Paso 1996, no pet.); Caballero v. State, 927 S.W.2d 128, 131 (Tex. App.--El Paso 1996, pet. ref’d).
cited Cited as authority (rule) Luis Carrasco v. State
Tex. App. · 2005 · confidence medium
App. 1973); Caballero v. State, 927 S.W.2d 128, 132 (Tex. App.--El Paso 1996, pet. ref’d).
discussed Cited as authority (rule) United States v. Assiter
5th Cir. · 2004 · signal: cf. · confidence medium
See Gregory v. State, 56 S.W.3d 164, 171 (Tex.App.—Houston [14th Dist.] 2001, pet. dism’d), cert. denied 538 U.S. 978 , 123 S.Ct. 1787 , 155 L.Ed.2d 667 (2003); cf. Caballero v. State, 927 S.W.2d 128, 130 (Tex.App.—El Paso 1996, pet.
cited Cited as authority (rule) Rodriguez v. State
Tex. App. · 2002 · confidence medium
See Mosley v. State, 686 S.W.2d 180, 183 (Tex.Crim.App.1985); Caballero v. State, 927 S.W.2d 128, 132 (Tex.App.—El Paso 1996, pet. ref'd).
discussed Cited as authority (rule) State v. Mason (2×)
Tex. Crim. App. · 1998 · confidence medium
As the State points out, the penal code provides that “ ‘element of offense’ means (A) the forbidden conduct; (B) the required culpability; (C) any required result; and (D) the negation of any exception to the offense.” The Court of Appeals properly noted the “has been convicted of a felony” requirement in § 46.04 falls under the “conduct” heading as a “cir-cumstanee[ ] surrounding the conduct.” State v. Mason, No. 14-97-00189-CR, slip op. at 4, 1997 WL 528912 (Tex.App. — Houston [14th Dist.] 1997) (citing Caballero v. State, 927 S.W.2d 128, 130 (Tex.App. — El Paso 199…
discussed Cited "see" Darwin N. White v. State
Tex. App. · 2012 · signal: see · confidence high
Tex. Penal Code Ann. § 6.03 (a) (West 2010); see Caballero v. State, 927 S.W.2d 128, 131 (Tex.App.—El Paso 1996, pet. ref’d) (addressing similar circumstance). 3 Applicable Law Appellate review of claimed error in a jury charge involves a two-step process.
discussed Cited "see" William Sam Grant v. State
Tex. App. · 2011 · signal: see · confidence high
See Caballero v. State, 927 S.W.2d 128, 131 (Tex. App.—El Paso 1996, no pet.) (concluding that the appellant was ―not harmed by an element of proof that was additional to that actually necessary to convict‖). 7 Accordingly, we overrule Grant‘s third issue.
cited Cited "see" Eric Garcia v. State
Tex. App. · 2011 · signal: see · confidence high
See Caballero v. State, 927 S.W.2d 128, 131 (Tex. App.–El Paso 1996, pet. ref‘d) (holding defendant was not harmed by an element of proof that was additional to that actually necessary to convict).
cited Cited "see" Martin Anthony Garcia v. State
Tex. App. · 2010 · signal: see · confidence high
See Caballero v. State, 927 S.W.2d 128, 131 (Tex. App.—El Paso 1996, pet. ref’d).
cited Cited "see" in Re Gregory Mitchell Sarkissian
Tex. App. · 2008 · signal: see · confidence high
See Caballero v. State , 927 S.W.2d 128, 131 (Tex. App.—El Paso 1996, pet. ref’d).
cited Cited "see" Thomas Gomez v. State
Tex. App. · 2001 · signal: see · confidence high
See Caballero , 927 S.W.2d at 130-31 .
cited Cited "see" Gonzalez, Ludivina Trevino Saenz v. State
Tex. App. · 2001 · signal: see · confidence high
See Caballero v. State , 927 S.W.2d 128, 130-31 (Tex. App.--El Paso 1996, pet. ref'd).
discussed Cited "see" Rodriguez v. State
Tex. App. · 2000 · signal: see · confidence high
See Caballero v. State, 927 S.W.2d 128 (Tex.App.—El Paso 1996, pet. ref'd.); See also Washington v. State, 930 S.W.2d 695 (Tex.App.—El Paso, 1996, no pet.) The Eighth Court of Appeals followed Alvarado v. State, 704 S.W.2d 36, 39 (Tex.Crim.App.1985), looking to the penal code to determine what guidance the Legislature provided in the statute.
discussed Cited "see" Noe Rodriguez v. State
Tex. App. · 2000 · signal: see · confidence high
See Caballero v. State , 927 S.W.2d 128 (Tex. App.--El Paso 1996, pet. ref'd.); See also Washington v. State , 930 S.W.2d 695 (Tex. App.--El Paso, 1996, no pet.) The Eighth Court of Appeals followed Alvarado v. State , 704 S.W.2d 36, 39 (Tex. Crim.
cited Cited "see" Washington v. State
Tex. App. · 1996 · signal: see · confidence high
See Caballero, 927 S.W.2d at 131 .
cited Cited "see" Washington v. State
Tex. App. · 1996 · signal: see · confidence high
See Caballero, 927 S.W.2d at 131 .
discussed Cited "see, e.g." Carlton Priester v. State
Tex. Crim. App. · 2015 · signal: see also · confidence medium
See generally, Mosley v. State, 686 S.W.2d 180, 183 (Tex.Crim.App. 1985) (when considering whether jury arguments were improper, the reviewing court must look to the statements in context, and not just to an isolated statement); see also Caballero v. State, 927 S.W.2d 128, 132 (Tex.App. – El Paso 1996, pet. ref'd) (jury argument must be analyzed in light of the entire argument made and not just isolated sentences).
discussed Cited "see, e.g." Priester v. State
Tex. App. · 2015 · signal: see also · confidence medium
See gen erally, Mosley v. State, 686 S.W.2d 180, 183 (Tex.Crim.App.1985) (when considering whether jury arguments were improper, the reviewing court must look to the statements in context, and not just to an isolated statement); see also Caballero v. State, 927 S.W.2d 128, 132 (Tex.App.-El Paso 1996, pet. ref’d) (jury argument must be analyzed in light of the entire argument made and not just isolated sentences).
discussed Cited "see, e.g." David Sidwell Jenson v. State
Tex. App. · 2008 · signal: see also · confidence medium
App. 2000); see also Smith v. State , No. 06-00-00136-CR, 2001 WL 1266058 , at *4 (Tex. App. C Texarkana Oct. 24, 2001, pet. ref = d) (not designated for publication). [2] See also Caballero v. State , 927 S.W.2d 128, 131 (Tex. App. C El Paso 1996, pet. ref = d) ( A The intent element [of the offense of indecency with a child] goes only to the purpose of the contact, not to any result therefrom. @ ); Rodriguez v. State , 24 S.W.3d 499, 502 (Tex. App. C Corpus Christi 2000, pet. ref = d) (quoting Caballero , 927 S.W.2d at 130 B 31) ( A The indecency [with a child] offense includes the requireme…
Retrieving the full opinion text from the archive…
Oscar CABALLERO, Appellant,
v.
the STATE of Texas, Appellee
08-94-00320-CR.
Court of Appeals of Texas.
Jun 20, 1996.
927 S.W.2d 128
Charles Lewis Roberts, El Paso, for Appellant., Jaime E. Esparza, Dist. Atty., El Paso, for the State.
Barajas, McClure, Chew.
Cited by 35 opinions  |  Published

OPINION

CHEW, Justice.

This is an appeal from a conviction for the offense of indecency with a child. The jury found the Appellant, Oscar Caballero, guilty and the court sentenced him to confinement in the Texas Department of Corrections— Institutional Division for a period of 15 years and 1 day. We affirm the conviction.

The State charged Caballero with two counts of indecency with a child. One count for each of Caballero’s two sons. The jury found Caballero guilty of only one count; the count pertaining to the older son. Both boys testified that their father had touched their genitals when they went to visit him on weekends. The older son, who was nine at the time of trial, further testified that Caballero had pulled down his pants and had the older boy touch him. The older boy testified that Caballero threatened to hit him if he told his mother about the incidents. The boys’ mother testified that a neighbor alerted her to the possibility that someone was sexually abusing the boys. The mother sought professional help for her sons. Dr. Lesley Fiferman, the psychologist who treated the boys, testified that both boys reported that Caballero had touched their genitals.

Caballero’s first two points involve error in the trial court’s submission of the following instruction to the jury:

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.

Defense counsel made the following objection to the instruction:

I would ask that it be stricken from the charge and we so object to the phrase ‘respect to the nature’ — excuse me — ‘to the nature of his conduct’ and also ‘desire to engage in the conduct’ and I would state that this charge is improper as far as the nature of conduct. I would make a third— I would make two objections each to those phrases.
I would make a third objection on the grounds that to put it in the disjunctive is another error and I believe that this is harmful because it is either a conduct offense or it is a result of a nature of conduct or result of conduct offenses [sic].
It cannot be both and this allows the jury to convict on one or the other or a combination thereof.

[*130] This case involves a concept the Court of Criminal Appeals has called “the most basic and fundamental concept of criminal law, that in order to constitute a crime, the act or actus reus must be accompanied by a criminal mind or mens rea.” Cook v. State, 884 S.W.2d 485, 487 (Tex.Crim.App.1994). The Legislature recognized this concept when it enacted separate culpable mental states. Section 6.03 of the Texas Penal Code delineates three “conduct elements” which may be involved in an offense: (1) the nature of the conduct; (2) the result of the conduct; and (3) the circumstances surrounding the conduct_ TexPenal Code Ann. § 6.03 (Vernon 1994). The Court of Criminal Appeals has determined that the scope of each culpable mental state is limited by the type of offense. In McQueen v. State, 781 S.W.2d 600, 603 (Tex.Crim.App.1989), the Court stated that analysis of criminal conduct varies according to the “conduct elements” of the offense. Id. at 603. Any offense may contain any one or more of these “conduct elements” which alone or in combination form the overall behavior which the Legislature has intended to criminalize, and it is those essential “conduct elements” to which a culpable mental state must apply. Id. For example, where specific acts are criminalized because of their very nature, a culpable mental state must apply to committing the act itself. If, however, unspecified conduct is criminal because of its result, culpability as to that result is necessary. Id. at 603.

In this case, Caballero bases two points of error on the trial court’s instruction. First, he asserts that indecency with a child is a “conduct” offense rather than a “result” offense and he was therefore harmed by the inclusion of language in the charge defining the culpable mental state in terms of intent to bring about a specified result. Second, Caballero argues that the offense must be either a “conduct” or a “result” offense, but cannot be both. Caballero claims the instruction as given in the disjunctive harmed him because it allowed individual members of the jury to find him guilty if they believed either that Caballero intended to engage in proscribed conduct, or that Caballero intended a result of the conduct. He therefore claims that the disjunctive submission deprived him of the right to a unanimous jury verdict.

With regard to Caballero’s first point of error, we initially note that his objection at trial does not comport with his argument on appeal. Caballero objected to the “conduct” language in the- charge which defined the culpable mental state in terms of Caballero’s intent to engage in the proscribed conduct. Caballero left the “result of conduct” language standing without objection. Caballero argues on appeal, however, that indecency with a child is a “conduct” offense and he claims harm from the inclusion of the “result of conduct” language.

The Court of Criminal Appeals has not yet characterized the offense of indecency with a child as a “conduct” or “result of conduct” offense. We therefore look to the Penal Code to determine whether the Legislature intended to punish “specified conduct” or a “specified result” in enacting the statute. See Alvarado v. State, 704 S.W.2d 36, 39 (Tex.Crim.App.1985). A person commits the offense of indecency with a child if, “with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he: (1) engages in sexual contact with the child_” TexPenal Code Ann. § 21.11(a)(l)(Vernon 1994). Section 21.01 of the penal code defines “sexual contact” as “any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.” Tex.Penal Code Ann. § 21.01(2).

The language of the relevant statutes indicate an intent on the part of the Legislature to proscribe specific conduct. That is, engaging in sexual contact with a person younger than seventeen. The indecency offense includes the requirement of “intent to arouse or gratify the sexual desire ...” because legitimate, non-criminal, contact may occur between parents, nurses, doctors, or other care-givers and a child, particularly a young child, on the relevant body parts. The offense, however, does not require that the arousal or gratification actually occur. The offense of indecency with a child is complete upon the contact accompanied by the requi[*131] site intent. The intent element goes only to the purpose of the contact, not to any result therefrom. Accordingly, we conclude that indecency with a child is an offense requiring proof of the defendant’s intent to engage in proscribed conduct, rather than his or her intent to bring about any particular result.

Having determined that indecency with a child is a “conduct” offense, we must determine whether the trial court erred in instructing the jury on the requisite mental state in terms of both intent to engage in conduct and intent to bring about a specified result. Cook v. State, 884 S.W.2d 485 (Tex.Crim.App.1994). The Court of Criminal Appeals stated in Cook that it is error if the trial court fails to limit the definitions of the culpable mental states as they relate to the conduct elements involved in the particular offense. Cook, 884 S.W.2d at 491. Thus, we find error in the trial court’s submission and we will review the record to determine whether the error harmed Caballero. Almanza v. State, 686 S.W.2d 157, 174 (Tex.Crim.App.1984). The record as a whole reflects that Caballero’s defense centered on the intent element of the charged offense. Caballero did not present evidence that he did not touch his son, rather, Caballero’s defense throughout trial was that he did not engage in the proscribed conduct with the intent to arouse or gratify his or anyone else’s sexual desire. Thus, the trial court’s instruction on the requisite intent and culpable mental state was of importance to Caballero’s defense.

If an offense is a “result of conduct” offense, a jury charge including the “conduct” language submitted in the disjunctive would cause harm to a defendant. For example, murder is a “result of conduct” offense. The State must prove that the accused engaged in conduct with the intent to bring about a specified result, the death of the victim. Cook, 884 S.W.2d at 491. If a charge for the offense of murder contained both conduct and result of conduct language, the defendant is harmed because the jury, or a single juror, might come to the conclusion that the defendant’s intent to engage in the conduct alone, without an intent to bring about the death of the victim, is enough to convict. In that ease, the extra language implies that the State has to prove less than is actually necessary to constitute the offense of murder. With a “conduct” offense, however, there is no “result” that the State must prove in order to convict the defendant. The State need only prove that the defendant engaged in the proscribed conduct: having sexual conduct with a child under the age of seventeen. The charge defined the proscribed conduct for the jury. In this case, the additional language in the charge pertaining to result of conduct implied that the State had to prove more than is actually necessary for a conviction. That is, that Caballero intended something to result from the defined conduct.

Even if the charge led all or any of the jury to believe that the State had to prove that Caballero intended some sort of result from his conduct, Caballero is not harmed by an element of proof that was additional to that actually necessary to convict. The United States Supreme Court has determined that there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991), quoting Schad v. Arizona, 501 U.S. 624, 632, 111 S.Ct. 2491, 2497, 115 L.Ed.2d 555, 565 (1991)(plurality opinion); Nevarez v. State, 847 S.W.2d 637, 643-44 (Tex.App.-El Paso 1993, pet. ref d). A defendant’s due process rights to a unanimous verdict are not affected even if the charge allows the jury to disagree on how the defendant committed the offense. See Nevarez, 847 S.W.2d at 644. On these facts, we do not find that the instruction harmed Caballero, or deprived him of his right to a unanimous jury verdict. Accordingly, we overrule points one and two.

In his final two points of error, Caballero asserts error in the trail court’s failure to sustain, and failure to rule on, his objection to the following statements during final argument:

Prosecutor: It didn’t happen because somebody made an allegation. It happened because they were playing inappropriately and the neighbor came over and said, T don’t want your son playing with my son anymore.’
[*132] Defense: Your Honor, that’s not the evidence. I would object.
The Court: The jury will collectively remember what the evidence is. Let me remind you again what the attorneys say in this courtroom is not evidence.
Defense: Your Honor, I would like a ruling on the objection.
The Court: I do not recall what the testimony is myself. In that regard, I’m not going to make a call on what the testimony is. The jury has been instructed they know what the testimony is.

Proper jury argument consists of: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument of opposing counsel; and (4) a plea for law enforcement. Alejandro v. State, 493 S.W.2d 230, 231-232 (Tex.Crim.App.1973). Jury argument must be analyzed in light of the entire argument made and not just isolated sentences. See Mosley v. State, 686 S.W.2d 180, 183 (Tex.Crim.App.1985). In this case, the prosecutor’s comment was a permissible summation of evidence presented at trial. The boys’ mother testified that “I found out by my next door neighbors that he [Caballero] was sexually abusing my kids. I mean, I found out that way.” When asked how she had received the information from the neighbor, she explained that her boys were exhibiting “bad behavior” at her next door neighbor’s house. The boys’ mother testified that the neighbor’s complaints of the boys’ “bad” behavior led her to investigate and seek attention for her children which in turn led to discovery of the sexual abuse.

Although there is no evidence in the record to indicate that the neighbor actually uttered the phrase “I don’t want your son playing with my son anymore,” it is clear that the neighbor complained about the boys’ behavior. The prosecutor’s statement is a reasonable deduction from the evidence and constitutes permissible summation of the testimony. Similarly, the prosecutor’s use of the phrase “playing inappropriately” instead of “bad behavior,” did not render the statement objectionable. The statement, placed in context of the entire argument, properly presented a summation of the evidence of the neighbor’s complaints introduced at trial. As such, it was proper jury argument. Accordingly, we overrule Points of Error Three and Four.

Having considered and overruled each of Caballero’s points of error, we affirm the judgment of the trial court.