COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-03-00390-CR
NICHOLAS GEORGE KLEIN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1 ON REMAND ON
STATE’S PETITION FOR DISCRETIONARY REVIEW
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Pursuant to rule of appellate procedure 50, we have reconsidered our
previous opinion on remand upon reviewing the State’s petition for discretionary
review.2 W e withdraw our August 12, 2010 memorandum opinion on remand,
dissenting memorandum opinion on remand, and judgment, and we substitute the
following.
1
See Tex. R. App. P. 47.4.
2
See Tex. R. App. P. 50.
Following a jury trial, Appellant was convicted of eight counts of aggravated
sexual assault of a child. On original appeal, this court held that the evidence was
legally insufficient to support convictions on six counts and rendered an acquittal on
those counts.3 Regarding the remaining two counts, this court held that (1) the
evidence was legally and factually sufficient to support the convictions,4 (2) the
testimony of the designated outcry witness was admissible under the outcry
exception to the hearsay rule,5 (3) the admission of any testimony by the designated
outcry witness at trial that was not included in the summary of outcry witness
testimony given to Appellant prior to trial was not error,6 (4) any probative value of
impeachment testimony relating to the complainant’s testimony recanting her prior
outcry statement was substantially outweighed by its prejudicial effect,7 (5) the
testimony of the Child Protective Services (CPS) investigator and the police officer
was not admissible under the prior consistent statement exception to the hearsay
rule,8 and (6) the trial court’s error in admitting such testimony was not harmless.9
3
Klein v. State, 191 S.W .3d 766, 775 (Tex. App.—Fort Worth 2006) (Klein
I), rev’d, 273 S.W .3d 297, 298–99 (Tex. Crim. App. 2008) (Klein II).
4
Id. at 774, 778.
5
Id. at 780.
6
Id. at 781.
7
Id. at 783.
8
Id. at 784.
9
Id. at 785.
2
On the State’s original petition for discretionary review, the Texas Court of
Criminal Appeals held that the evidence was legally sufficient to support a finding
that Appellant had sexually assaulted the complainant (by touching her sexual organ
with his tongue and finger) “on at least four separate occasions”10 and that the
complainant’s out-of-court statements to the CPS investigator and police officer that
she had been sexually abused by Appellant were admissible as nonhearsay prior
consistent statements.11 The Texas Court of Criminal Appeals therefore remanded
the case to us for further proceedings. Because we already held that the evidence
is sufficient on two counts, the Texas Court of Criminal Appeals has held that the
evidence is sufficient on the remaining six counts and that the testimony of the CPS
investigator and police officer was properly admitted, and we now hold that the trial
court did not err by stacking the sentences, we affirm the trial court’s judgments.
After this court issued its original opinions on remand, the Texas Court of
Criminal Appeals held “that there is no meaningful distinction between a Clewis [12]
factual-sufficiency standard and a Jackson v. Virginia [13] legal-sufficiency standard”
and that
10
Klein II, 273 S.W .3d at 303.
11
Id. at 317.
12
Clewis v. State, 922 S.W .2d 126 (Tex. Crim. App. 1996).
13
443 U.S. 307, 99 S. Ct. 2781 (1979).
3
the Jackson v. Virginia standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to
support each element of a criminal offense that the State is required to
prove beyond a reasonable doubt. All other cases to the contrary,
including Clewis, are overruled.14
Accordingly, because this court already held the evidence sufficient under
Jackson to support Appellant’s convictions on Counts VII and VIII and the Texas
Court of Criminal Appeals already held the evidence sufficient under Jackson to
support the remaining six counts, we overrule Appellant’s first and second points.
In his seventh and only remaining live point, Appellant contends that the trial
court erred by stacking seven probated sentences on top of a sentence of
incarceration. But Appellant relies on Green v. State,15 which has been superseded
by statute.16 Article 42.08 of the code of criminal procedure provides in relevant part,
W hen the same defendant has been convicted in two or more cases,
judgment and sentence shall be pronounced in each case in the same
manner as if there had been but one conviction. . . . [I]n the discretion
of the court, the judgment in the second and subsequent convictions
may either be that the sentence imposed or suspended shall begin
when the judgment and the sentence imposed or suspended in the
preceding conviction has ceased to operate, or that the sentence
14
Brooks v. State, No. PD-0210-09, 2010 W L 3894613, at *1, 14 (Tex. Crim.
App. Oct. 6, 2010).
15
706 S.W .2d 653 (Tex. Crim. App. 1986).
16
See Pettigrew v. State, 48 S.W .3d 769, 772 & n.17 (Tex. Crim. App. 2001)
(noting that article 42.08 was amended after Green was handed down to allow the
stacking of, among other things, prison terms and periods of community
supervision).
4
imposed or suspended shall run concurrently with the other case or
cases, and sentence and execution shall be accordingly . . . .17
In this case, Appellant was sentenced to ten-year terms on all eight counts, but the
sentences in his final seven counts were suspended. The trial court ordered that the
seven ten-year probated sentences would be served concurrently with each other
but consecutively to the ten-year sentence of confinement imposed on the first
count. The trial court had the discretion under the statute to so stack the sentences;
we therefore overrule Appellant’s seventh point.
Because (1) we already held the evidence sufficient on two counts, (2) the
Texas Court of Criminal Appeals held the evidence sufficient on the remaining six
counts, (3) we are bound by the Texas Court of Criminal Appeals’s holding that the
testimony of the CPS investigator and the police officer was properly admitted, and
(4) we hold that the trial court did not err by stacking the sentences, we affirm the
trial court’s judgments on all eight counts.
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 2, 2010
17
Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon Supp. 2010).
5