In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00055-CR
______________________________
MALCOLM GEORGE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 114th Judicial District Court
Smith County, Texas
Trial Court No. 114-2211-07
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
After a bench trial, Malcolm George was orally sentenced to confinement for thirty-five years for aggravated assault based on a threat to use a deadly weapon against Stephanie Veasey and her seventeen-year-old son, Jonathan Veasey. (1) George contends the evidence was legally and factually insufficient to support his conviction. After a careful review of the evidence, we affirm George's conviction, but reform the written judgment assessing two life sentences to conform with the oral judgment pronounced at trial. (2)
I. Factual Background
George dated Stephanie and lived in her home along with her three children. One morning, George went to work in the yard placing bricks around the flowerbeds. He discovered that the aid of a weedeater was needed during this task. As George tried to grab the weedeater, it fell apart. Because he felt that Stephanie's oldest son had purposefully taken apart the weedeater, George became angry and marched into the house in a rampage. He opened and slammed doors and destroyed objects in the house by kicking them. He woke Stephanie by pacing back and forth between the kitchen and bedroom and yelling at her to find her oldest son another place to live.
A high chair in the kitchen shattered after George threw it to the ground. George picked up the three-and-a-half to four-foot metal high-chair leg "like he was going to hit [Stephanie] with it." He threatened Stephanie from the kitchen stating that he "was going to bash her face in with . . . that pole," while waving the chair leg. When threatening Stephanie, George remained three or four yards away from her and never came close enough to actually hit her. Stephanie remained in bed for the duration of the incident. However, she testified she felt as though George might hit her. Although recanted, Stephanie at one point indicated she felt her life was at stake. Jonathan witnessed the incident and described it as "life threatening."
Still holding the chair leg, George told Jonathan to go to his room and threatened to hit him with the leg by stating, "if you call [the police], I guarantee that you'll be down--down or dead before they get here." Jonathan testified that he was "very scared" and that, as George threatened him, he "thought that [he] was going to be gone too." Trying to defuse the situation, Stephanie got into her car, left the house, and called the police. After she left, George asked Jonathan to call her and warn her that the big screen television would be broken if she did not return. George waited outside. When Stephanie returned, George picked up a brick and began running toward the car. He threw Stephanie's cell phone out of the window, said he knew she had called the police, and asked her to help him pack. The police arrived as they were packing George's belongings into the car and arrested him for aggravated assault.
Police officer James Turner testified at trial. He confirmed Jonathan's statement that George threatened to bash his mother's face in and threatened Jonathan that, if he called the police, he would be dead before they arrived. Turner also testified that the chair leg was capable of causing serious bodily injury or death.
II. The Evidence Is Legally Sufficient to Support George's Conviction
When conducting a legal sufficiency analysis, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Clewis v. State, 922 S.W.2d 126, 132-33 (Tex. Crim. App. 1996). This standard serves as a tool to determine whether there is a fact issue at all. Clewis, 922 S.W.2d at 133. In other words, if the evidence is insufficient under the Jackson standard, we must render a judgment of acquittal. Id. However, if the Jackson standard is met, we must give full play to the fact-finder's responsibility to weigh the evidence, resolve conflicts in the testimony, and draw reasonable inferences from basic facts. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Clewis, 922 S.W.2d at 133; Bottenfield v. State, 77 S.W.3d 349, 354 (Tex. App.--Fort Worth 2002, pet. ref'd) (citing Jackson, 443 U.S. at 319).
The State is not required to prove the ability to commit battery for a defendant to be convicted of assault. Miller v. State, 741 S.W.2d 501, 503 (Tex. App.--Corpus Christi 1987, pet. ref'd) (conviction affirmed even though victim was out of range of shotgun). Instead, one manner of committing aggravated assault with a deadly weapon requires proof of: 1) intentionally or knowingly threatening another with imminent bodily injury; and 2) using or exhibiting a deadly weapon during the commission of the assault. Tex. Penal Code Ann. §§ 22.01(a)(2); 22.02(a)(2) (Vernon Supp. 2008). While the question of whether the defendant's conduct produced fear is relevant, the crucial inquiry is "whether the assailant acted in such a manner as would under the circumstances portend an immediate threat of danger to a person of reasonable sensibility." Olivas v. State, 203 S.W.3d 341, 347 (Tex. Crim. App. 2006) (citing Anthony v. United States, 361 A.2d 202, 206 (D.C. 1976)); see also Chapman v. State, 78 Ala. 463, 465 (Ala. 1885).
In some circumstances, the mere presence of a deadly weapon can be enough to instill fear and threaten a person with bodily injury. De Leon v. State, 865 S.W.2d 139, 142 (Tex. App.--Corpus Christi 1993, no pet.).
Here, George threatened Stephanie with the high chair leg by stating he would "bash her face in." The threat caused Stephanie to reasonably feel that George would hit her. A fact-finder could decide Stephanie was afraid that serious bodily injury or death could occur because she testified feeling that her life was at stake. George also threatened to hit Jonathan with the chair leg and said he would kill him if he called the police. In addition to stating he was "very scared" and was afraid he "was going to be gone too," the following exchange occurred during Jonathan's cross-examination:
Q. . . . did there come a point where you didn't really feel like your life was in jeopardy?
A. I was - - I was kind of still afraid, because I - - he - - he doesn't - - I don't think he really would lie about something like that. But then at points where he could just cool down, it wouldn't happen. That's what I would think.
In both instances, injury was imminent because George threatened present harm and had the present ability to carry out his threats. See Tidwell v. State, 187 S.W.3d 771, 774-75 (Tex. App.--Texarkana 2006, pet. struck). We give full play to the trial court's responsibility to weigh this testimony and draw the reasonable inference that George intentionally or knowingly threatened Stephanie and Jonathan with imminent bodily injury. The evidence is legally sufficient on this point. Next, under the Texas Penal Code, a deadly weapon is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Penal Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2008); Charleston v. State, 33 S.W.3d 96, 100 (Tex. App.--Texarkana 2000, pet. ref'd). Because a high-chair leg is not designed, made, or adapted for the purpose of inflicting bodily injury, it is not a deadly weapon per se. McCain v. State, 22 S.W.3d 497, 502 (Tex. Crim. App. 2000); In re S.B., 117 S.W.3d 443, 446 (Tex. App.--Fort Worth 2003, no pet.); Charleston, 33 S.W.3d at 99. The following five-factor test can be used in determining whether the chair leg is a deadly weapon: (1) physical proximity between the victim and the object; (2) the threats or words used by the assailant; (3) the size and shape of the weapon; (4) the weapon's ability to inflict death or serious injury; and (5) the manner in which the defendant used the weapon. Brown v. State, 716 S.W.2d 939, 946-47 (Tex. Crim. App. 1986); Tisdale v. State, 686 S.W.2d 110, 115 (Tex. Crim. App. 1984); English v. State, 647 S.W.2d 667, 669 (Tex. Crim. App. 1983); Blain v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983); Williams v. State, 575 S.W.2d 30 (Tex. Crim. App. 1979). No one factor is determinative, and each case must be examined on its own facts. Either expert testimony or lay testimony may be sufficient to support a finding. English, 647 S.W.2d at 668-69.
The evidence established that George was within three to four yards of Stephanie when he threatened her. The distance between George and Jonathan during the various threats is not established in the record. The threats spewed from George demonstrate the capability of the chair leg to be used as a deadly weapon. George raised and waved the chair leg in a manner that could be used to cause serious injury or death. Turner testified that the three-and-a-half to four-foot metal pole brandished by George was capable of causing serious injury or death. In sum, all factors save proximity tend to support the finding that the chair leg was a deadly weapon. Yet, since George's ability to actually hit Stephanie or her son need not be proved, and because Turner's testimony alone could be sufficient to support the deadly weapon finding, we find when the evidence is viewed in the light most favorable to the verdict, it is legally sufficient to establish that the chair leg was a deadly weapon. Miller, 741 S.W.2d at 503; English, 647 S.W.2d at 668-69.
III. The Evidence Is Factually Sufficient to Support George's Conviction
Because factual sufficiency is an issue of fact, we are not free to reweigh the evidence and set aside a judgment merely because we feel a different result is more reasonable. Clewis, 922 S.W.2d at 135. Instead, we give due deference to the fact-finder's determinations and will find the evidence factually insufficient only when necessary to prevent manifest injustice. Johnson, 23 S.W.3d at 8-9, 12; Clewis, 922 S.W.2d at 133, 135. Thus, we view the evidence in a neutral light when assessing factual sufficiency and determine whether the proof of guilt is so obviously weak as to undermine confidence in the verdict, or, if taken alone, is greatly outweighed by contrary proof so as to be clearly wrong and unjust. Johnson, 23 S.W.3d at 11; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Harris v. State, 133 S.W.3d 760, 764 (Tex. App.--Texarkana 2004, pet. ref'd). If we find the evidence factually insufficient, we must vacate the conviction and remand the cause for a new trial in order to avoid substituting our own judgment for that of the fact-finder. Clewis, 922 S.W.2d at 133-35.
The evidence recounted above supports the finding that George intentionally or knowingly threatened Stephanie and Jonathan with imminent bodily injury while exhibiting a deadly weapon. See Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2). We cannot say that the trial court's finding was clearly wrong or was against the great weight and preponderance of this evidence, which is factually sufficient to support the conviction. IV. Written Judgment Must Be Reformed
Where there is a variation between the oral pronouncement of sentence and the written memorialization of the sentence, the oral pronouncement controls. Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003); Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). While George was orally sentenced to two thirty-five-year concurrent sentences for aggravated assault of Stephanie and her son, the written judgment reflects George is to serve two life sentences for the same crimes. This Court has the authority to reform the judgment sua sponte in order to "make the record speak the truth." Tex. R. App. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Asberry v. State, 813 S.W.2d 526 (Tex. App.--Dallas 1991, pet. ref'd). We therefore modify the judgment to reflect the oral pronouncement at trial.
V. Conclusion
Based on a finding that the evidence is legally and factually sufficient, we affirm George's conviction of aggravated assault committed against Jonathan. Also, we modify the judgment to conform with the oral pronouncement at trial and reform George's judgment and sentence to confinement for thirty-five years, to run concurrently with the sentence in cause number 06-08- 00056-CR.
Jack Carter
Justice
Date Submitted: September 29, 2008
Date Decided: October 22, 2008
Do Not Publish
1. The indictment in this case was for the assault against Jonathan, Stephanie's middle son.
George was also convicted of aggravated assault of Stephanie, and assessed a concurrent thirty-five-year sentence in a companion case which we have decided today under cause number 06-08-00056-CR. Since these assaults originated during one time period, the facts concerning each charge will
be discussed in this opinion.
2. This case has been transferred to this Court as part of the Texas Supreme Court's docket
equalization program.
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00204-CR
______________________________
HAROLD DONNIE HALBROOK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 196th Judicial District Court
Hunt County, Texas
Trial Court No. 24882
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Indictments returned in Hunt County, Texas, alleged that on or about June 23, 2007 and July 7, 2007, Harold Donnie Halbrook cause[d] his hand to contact and/or penetrate the sexual organ of [M.B.] . . . with intent to gratify his sexual desire; that on June 24, 2007 and on June 8, 2007, Halbrook expose[d] his penis to her with intent to gratify his sexual desire; and that on July 9, 2007 and again on July 19, 2007, he cause[d] his sexual organ to penetrate the sexual organ of [M.B.].
M.B. is the eight-year-old daughter of Halbrook. In the same session that a grand jury handed down the indictments mentioned above, Halbrook was also indicted for multiple offenses against his six-year-old stepdaughter, M.L.[1]
Trial to a jury upon these allegations pertaining to his conduct toward M.B. led to convictions upon two counts of aggravated sexual assault, two counts of indecency with a child by contact, and two counts of indecency with a child by exposure. The jury assessed punishment of life imprisonment for each of the two aggravated sexual assault counts, twenty years imprisonment on each of the two counts of indecency with a child by contact, and ten years imprisonment on each of the two counts of indecency with a child by exposure.
Halbrook appeals his convictions, alleging two major points of appeal: (1) he maintains that the evidence is legally and factually insufficient to support the convictions and (2) that he received multiple convictions for the same offense.
We affirm the trial courts judgments.
I. Sufficient Evidence Supports Each of Halbrooks Convictions
A. Standard of Review
We review the legal and factual sufficiency of the evidence supporting Halbrooks convictions under well-established standards. In conducting a legal sufficiency review, we consider the evidence in the light most favorable to the verdict to determine whether any rational jury could have found the essential elements of the crime beyond a reasonable doubt. Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). We must give deference to the responsibility of the jury to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 31819 (1979)). We are not required to determine whether we believe that the evidence at trial established guilt beyond a reasonable doubt; rather, when faced with conflicting evidence, we must presume that the jury resolved any such conflict in favor of the prosecution, and we must defer to that resolution. State v. Turro, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).
In conducting a factual sufficiency review, we consider the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). The verdict will be set aside only if (1) it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust, or (2) it is against the great weight and preponderance of the evidence. Id. at 41415 (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). In our review of the sufficiency of the evidence, we are instructed to use the hypothetically-correct jury charge analysis to evaluate both the legal and factual sufficiency of the evidence (despite the fact that there is no allegation that there was any error in the charge to the jury). Grotti v. State, 273 S.W.3d 273 (Tex. Crim. App. 2008). Such a charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the States burden of proof or unnecessarily restrict the States theories of liability, and adequately describes the particular offense for which the defendant was tried. Villarreal v. State, 286 S.W.3d 321 (Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
Under a hypothetically-correct jury charge, Halbrook committed the offense of the aggravated sexual assault of M.B. if it is proven that (a) Halbrook (b) intentionally or knowingly (c) caused his sexual organ to penetrate the sexual organ of M.B. (d) at a time that M.B. was younger than fourteen years of age. Tex. Penal Code Ann. § 22.021(a)(1)(B)(ii), (2)(B) (Vernon Supp. 2009). Halbrook committed the offense of indecency with a child by contact against M.B. if (a) Halbrook (b) either engaged in sexual contact with M.B. or caused M.B. to engage in sexual contact (c) when M.B. was younger than seventeen years of age at that time. Tex. Penal Code Ann. § 21.11(a)(1) (Vernon Supp. 2009). Sexual contact means any touching by a person of any part of the genitals of a child or any touching of any part of the body of a child with any part of the genitals of a person, if committed with the intent to arouse or gratify the sexual desire of any person. Tex. Penal Code Ann. § 22.11(c) (Vernon Supp. 2009). Halbrook committed indecency with a child by exposure as to M.B. if (a) when M.B. was younger than seventeen years of age, (b) he exposed his genitals to M.B., (c) with the intent to gratify sexual desire. Tex. Penal Code Ann. § 21.11(a)(2)(A). A person acts intentionally with respect to the nature of his conduct when it is his conscious objective or desire to engage in the conduct; a person acts knowingly with respect to the nature of his conduct when he is aware of the nature of his conduct. Tex. Penal Code Ann. § 6.03(a), (b) (Vernon 2003).
B. State Was Not Required to Establish Time of Offense
Halbrook first complains that the evidence is insufficient to establish that the offenses occurred within the time frame alleged by the State. The State is not required to allege a specific date in an indictment. Mitchell v. State, 168 Tex. Crim. 606, 330 S.W.2d 459, 462 (1959). The use of the on or about language is sufficient, so long as the act occurred before the date of the presentation of the indictment, but within the relevant limitations period. Broderick v. State, 35 S.W.3d 67, 76 (Tex. App.Texarkana 2000, pet. refd) (citing Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997); Thomas v. State, 753 S.W.2d 688, 692 (Tex. Crim. App. 1988)). The indictments alleged a date the act occurred which was prior to the presentation of the indictment. Aggravated sexual assault of a child under Section 22.021(a)(1)(B) of the Texas Penal Code, and indecency with a child are offenses for which there is no limitation by statute. Tex. Code Crim. Proc. Ann. art. 12.01(1)(B), (E) (Vernon Supp. 2009). Thus, the State was not required to establish a time frame regarding occurrence of these offenses.
C. The Evidence
M.B. testified that her fathers (referring to him as Donny)[2] front area private part touched her front area. During a recorded video interview with Crisis Center of Northeast Texas executive director Kacy Flanagan, M.B. was able to provide further details. She said that Halbrook made [her] do nasty to him, clarifying that nasty was really sex, and that he made [her] do sex with him by putting his private inside hers. M.B. told Flanagan that Halbrook would push her up and down, while only his private was exposed. She re-enacted the scene in a manner indicating vaginal intercourse, stated he would hurt her front part when doing the nasty, and that milky stuff came out after the act. M.B. explained that Halbrook made her do sex with him all the time, and that it happened at the new house, old house, and trailer.
The testimony of a child sexual abuse victim alone is sufficient to support a conviction for aggravated sexual assault. Ozuna v. State, 199 S.W.3d 601, 606 (Tex. App.Corpus Christi 2006, no pet.) (citing Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978)). We find this evidence legally and factually sufficient to support a finding by the jury that Halbrook twice intentionally or knowingly caused his sexual organ to penetrate the sexual organ of M.B., a child younger than fourteen years of age.
As to evidence of indecency with a child by contact,[3] M.B. testified that Halbrook touched her front private part with his hands. M.B. illustrated this act for the jury through stick figure drawings. M.B. stated the last time Halbrook put his hands in her vagina was the night before the police officer came to Halbrooks home. M.B.s interview with Flanagan produced statements from M.B. that Halbrook touched the inside of M.B.s vagina all the time and that it hurt and stung during the act. Nurse Kim Basinger, who examined M.B. after her outcry, noted that M.B. said [Halbrook] touch[es] us here[4] while pointing to her vagina. We find the evidence amply sufficient to establish that Halbrook, on at least two occasions, touched his hand to the sexual organ of M.B., a child younger than seventeen, with the intent to arouse or gratify sexual desire.
With respect to indecency with a child by exposure, M.B. testified that Halbrook showed [h]is front area, by sticking out his private (penis) and laugh[ing] about it. M.B. defined other instances where exposure of Halbrooks sexual organs to her would be necessary to achieve the act she described. She testified Halbrook made her touch his front area with her hands and mouth, made her suck on his penis after proclaiming its your turn, and would put his penis inside the cheeks of her buttocks. M.B. stated that she visited Halbrook every other weekend, and was molested in some manner every time upon visitation for a period of two years. Basinger recorded M.B.s comment to her that [Halbrook] touched me on my privates and butt with his privates. Flanagan also noted M.B.s comments that she was made to perform oral sex on her father.[5] We find this evidence sufficient to establish that on at least two occasions, while M.B. was younger than seventeen years of age, Halbrook exposed his genitals to her with intent to arouse or gratify sexual desire.
M.B. testified that she had once received a spanking in punishment for having disobeyed Halbrooks sexual requests, and was threatened with additional spankings if she did not comply with those demands. Halbrook also instructed M.B. not to disclose the activity to anyone or he would bust [her] butt again. M.B. was afraid, and kept quiet for two years. One day, she confided in her child friend, Ashley, as they rode together on the school bus. Ashley then told her mother of the revelation and Ashleys mother reported this to the police. Officer Nathan Ehrhart went to Halbrooks home that night to investigate. M.B. testified clearly that Ehrhart was the first adult she told about the incidents.[6]
Ehrharts testimony further supports our conclusions on legal and factual sufficiency. He recalled M.B.s statements that her father had walked in made the male children in the house leave the room from time to time on different occasions and the father would come in and expose himself to her. Ehrhart also learned M.B. was penetrated in the vehicle by her father . . . just days prior to the actual time of the call. He told the jury that further questioning at the scene revealed this type of activity had been going on for several months.
Considering the testimony of M.B., Flanagan, Basinger, and Ehrhart in the light most favorable to the verdict, we conclude that a rational jury could have found the essential elements of two separate counts of aggravated sexual assault, indecency with a child by contact, and indecency with a child by exposure, as alleged in the indictments, beyond a reasonable doubt. The jury was free to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13. Even considering this evidence in a neutral light, we do not find the verdict so contrary to the overwhelming weight of the evidence as to be clearly wrong, manifestly unjust, or against the great weight and preponderance of the evidence. Because the evidence supporting Halbrooks convictions was legally and factually sufficient, we overrule his first point of error.
II. Halbrook Did Not Preserve His Complaint that Double Jeopardy Was Violated
Double jeopardy is the principle that a person shall not be subject for the same offence to be twice put in jeopardy of life or limb. U.S. Const. amend. V. A conviction for both a greater and a lesser-included offense violates double jeopardy if it arises out of the same act. Alberts v. State, 302 S.W.3d 495, 50001 (Tex. App.Texarkana 2009, no pet.). Halbrook alleges that his convictions on each count constitute impermissible multiple convictions for the same offense.
[A] potential multiple-punishment double-jeopardy claim may be forfeited if a defendant does not properly preserve that claim. Langs v. State, 183 S.W.3d 680, 686 (Tex. Crim. App. 2006). Halbrooks complaint was not made to the trial court either in his motion for new trial, through objection to the charge, or otherwise. A defendant may raise a double jeopardy claim for the first time on appeal only when error is apparent from the record. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000). This occurs when (1) no further proceedings are required to expand the record with new evidence; (2) the claim can be resolved on the basis of the existing record; and (3) enforcement of usual rules of procedural default serves no legitimate state interests. Id. at 64344 (citing United States v. Broce, 488 U.S. 563, 575 (1989)).
It is true that indecency with a child can be a lesser-included offense of aggravated sexual assault depending on the facts of the case if the greater offense requires acts that also establish the lesser offense. Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004). In this case, for example, Halbrook was convicted of causing his sexual organ to penetrate M.B.s sexual organ. While it was not necessary for his hand to come into contact with M.B.s sexual organ for the aggravated sexual assault to occur, it was necessary for him to have exposed himself. Thus, if Halbrook had been indicted for aggravated sexual assault and indecency with a child by exposure arising out of the same act, double jeopardy concerns could arise. Alberts, 302 S.W.2d at 502.
The key to this issue in this case, however, is the fact that the States indictments all allege separate dates on which the acts giving rise to each count occurred. Thus, the State was not alleging that the indecency by exposure occurred on the same dates as the aggravated sexual assault. While specific dates were not established, M.B. testified to several instances of abuse and claimed that they occurred every other week for a period of two years. Unless we speculated that the indecency by exposure occurred only on the same dates as the aggravated sexual assault during a single act, we cannot conclude that a violation of double jeopardy occurred.
In order for us to determine that indecency with M.B. by exposure was a lesser-included offense of the aggravated sexual assault in Halbrooks case, we would need additional facts that cannot be determined on the basis of the existing record. Gonzalez, 8 S.W.3d at 644. Thus, we conclude Halbrook has failed to preserve his double jeopardy complaint for our review. See id. at 644; see also Langs, 183 S.W.3d at 687 (The fact that the jurys verdict could have relied on a theory that would violate the Double Jeopardy Clause, is not sufficient to show a constitutional violation clearly apparent on the face of the record.).
Halbrooks last point of error was not preserved.
III. Conclusion
We affirm the judgment of the trial court.
Bailey C. Moseley
Justice
Date Submitted: July 8, 2010
Date Decided: July 28, 2010
Do Not Publish
[1]The cases against Halbrook pertaining to both children were tried together and the convictions of Halbrook for the offenses concerning his offenses against M.L. are the subject of a separate appeal.
[2]Halbrook alleges that his identity as the perpetrator was not established because M.B. did not identify him by his picture. Based on M.B.s testimony that her father, Donny, was the perpetrator, we find Harold Donnie Halbrooks contention to be without merit.
[3]There is more than one way to engage in sexual contact under the Texas Penal Code. Tex. Penal Code Ann. § 22.11(c). We restrict our analysis of legal and factual sufficiency to the hypothetically-correct jury charge based on the States indictment, which specifically alleged Halbrook contacted M.B.s sexual organ with his hand on two occasions.
[4]The us to whom she referred was both her and her sister.
[5]The evidence indicates Halbrook also performed oral sex on M.B.
[6]Halbrook was also convicted of two counts of aggravated sexual assault with his six-year-old-stepdaughter, M.L. Halbrooks indictments involving M.B. and M.L. were consolidated and tried together. He appealed all convictions in a single brief filed with this Court. In one point of error raised in the consolidated brief, Halbrook alleged Ehrharts statements should not have been admitted because Ehrhart was not the proper outcry witness. In cause number 06-09-00205-CR, we found the trial court erred in admitting Ehrharts statements for use in the States case against Halbrook for acts committed against M.L. because M.L. testified Ehrhart was not the first adult she told. In this case, we clarify that Halbrook does not allege Ehrhart was an improper outcry witness for M.B.