                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-235-CR


RICHARD COLUMBUS STRICKLIN II                                      APPELLANT

                                              V.

THE STATE OF TEXAS                                                      STATE

                                          ------------

     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

                                          ------------

                          MEMORANDUM OPINION 1

                                          ------------

                                   I. Introduction

      Appellant Richard Columbus Stricklin II appeals his two convictions for

indecency with a child by contact. In two points, appellant argues that the

evidence is factually insufficient to support his convictions and that the trial

court abused its discretion by overruling his objection to the State’s improper




      1
          … See T EX. R. A PP. P. 47.4.
notice of extraneous offense testimony during the punishment phase. We affirm.

                             II. Background Facts

      In February 2004, Jessica 2 told her mother, Deborah, that her father,

appellant, had sexually abused her. Jessica was ten or eleven years old when

appellant began abusing her and seventeen years old at the time of trial. At the

time of the outcry, Deborah and appellant were divorced. Deborah was living

in Arlington, Texas, and appellant was living with his parents in Mountain View,

Missouri. Deborah and appellant have two other daughters, Abigail and Teresa,

ages sixteen and fourteen, respectively at the time of trial.

      Jessica stated that the abuse occurred when appellant was living in an

apartment in Arlington, Texas. Jessica testified that appellant initially touched

her breasts with his hands and mouth. She further stated that appellant would

touch her inner thigh and [genitalia] with his hands, put his mouth on her

[genitalia], and lie on top of her while she was asleep.            Jessica also

remembered single incidents of appellant kissing her on her mouth and

attempting to put his penis in her [genitalia].


      2
        … Cf. T EX. R. A PP. P. 9.8, 71 T EX. B.J. 287-88 (Tex. 2008, scheduled to
take effect Sept. 1, 2008) (authorizing appellate courts to redact the names of
minor children and parents in appellate proceedings following parental-rights
termination proceedings or juvenile court proceedings and replace them with
fictitious names). Therefore, the names of minors and parents have been
redacted and replaced with fictitious names.

                                        2
      After Jessica told her about the abuse, Deborah called Child Protective

Services (“CPS”). She then took Jessica to Alliance for Children in Arlington,

Texas, to speak with a CPS investigator regarding the abuse and also took

Jessica to Cook Children’s Medical Center for a sexual abuse exam.

      Abigail moved to Missouri to live with appellant’s parents before Jessica

made the outcry, and Teresa moved to Missouri when she was twelve years

old. While Abigail and Jessica were living in Missouri, appellant lived at his

parents’ house in Missouri when he was not on active duty with the Navy

Reserves or driving a truck. Deborah and Jessica would travel to Missouri for

the holidays to visit Abigail and Teresa. During these visits, Jessica was never

allowed to have contact with appellant.

      The jury found appellant guilty of two counts of indecency with a child

by contact and assessed his punishment at thirteen years’ in the Institutional

Division of the Texas Department of Criminal Justice for each count, to run

concurrently.3




      3
       … The jury acquitted appellant of three counts of aggravated sexual
assault of a child. Additionally, the State did not proceed to trial on an
additional indecency with a child offense.

                                       3
                             III. Factual Sufficiency

      In his first point, appellant asserts that the evidence is factually

insufficient to support his convictions for indecency with a child by contact.

                             A. Standard of Review

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.

State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the fact-finder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the fact-finder’s determination is

manifestly unjust. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23

S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,

we must determine, with some objective basis in the record, that the great

weight and preponderance of all the evidence, though legally sufficient,

contradicts the verdict. Watson, 204 S.W.3d at 417.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

                                        4
overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence. Id. We may not simply substitute our judgment for the fact-

finder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407

(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result

is appropriate, we must defer to the jury’s determination of the weight to be

given contradictory testimonial evidence because resolution of the conflict

“often turns on an evaluation of credibility and demeanor, and those jurors were

in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.

Thus, we must give due deference to the fact-finder’s determinations,

“particularly those determinations concerning the weight and credibility of the

evidence.” Id. at 9.

      An opinion addressing factual sufficiency must include a discussion of the

most important and relevant evidence that supports the appellant’s complaint

on appeal.   Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Moreover, an opinion reversing and remanding on factual insufficiency grounds

must detail all the evidence and clearly state why the finding in question is

factually insufficient and under which ground. Goodman v. State, 66 S.W.3d

283, 287 (Tex. Crim. App. 2001); Johnson, 23 S.W.3d at 7.

                                       5
                                 B.   Analysis

      At trial, Jessica testified that she was ten or eleven years old when

appellant began to sexually abuse her. Jessica stated that at night she would

go to bed in the bedroom that she shared with her sisters Abigail and Teresa at

appellant’s apartment and that she would wake up in appellant’s bed. She said

that when she woke up, her shirt would be on the floor. Jessica testified that

she never talked to appellant about the abuse but instead tried to ignore it.

Jessica stated that appellant touched her breasts with his hands and mouth,

kissed her on the mouth one time, touched her inner thigh and [genitalia] with

his hands, and put his mouth on her [genitalia]. She also stated that she would

wake up with appellant lying on top of her, and one time appellant attempted

to put his penis in her [genitalia]. She stated that she would not get up during

the abuse but instead would pretend like she was sleeping.

      Jessica testified that she told Abigail about the abuse.     After telling

Abigail what had occurred, Abigail then confronted appellant. Jessica stated

that she stood in the hallway when Abigail was talking with appellant because

she was afraid. After the confrontation, the abuse stopped for a couple of

months, and then Jessica stopped spending the night at appellant’s apartment.




                                       6
        Deborah, Jessica’s mother, testified that in February 2004, she was

talking with Jessica in the laundry room when Jessica began to cry. Deborah

stated that after Jessica would not calm down, she asked Jessica if somebody

had touched her inappropriately, and Jessica shook her head “yes.”             After

listing off several names of family members and friends, Deborah asked Jessica

if appellant had touched her, and Jessica shook her head and “busted out

crying.” Deborah then asked Jessica if the abuse happened on more than one

occasion, and Jessica shook her head “yes.” Jessica never gave Deborah any

specifics about the sexual abuse. Deborah estimated that the conversation

lasted thirty minutes.

        After Jessica told Deborah about the sexual abuse, Deborah sent

appellant an email stating that she knew he had sexually abused Jessica and

that he was not going to see Jessica, Abigail, or Teresa anymore. Appellant

wrote Deborah back in an email the next day. The email stated in pertinent

part:

        Back when jered [sic] stayed with me & the girl’s [sic], the girls
        would take turns sleeping in bed with me. Lisa[, my estranged
        wife,] and [I] had separated and I was having erotic dream’s [sic]
        about Lisa. [Abigail] approached me about a week later and ask[ed]
        if we could talk in my room. She said that her and [Jessica] had
        talked about it and that they didn’t think it was right what was
        happening. I was stunned[.] I told her & [Jessica] that I apologized
        for any thing that had happened and swore it would never happen


                                         7
      again. From that day forward the girl’s [sic] never slept in bed with
      me again by my choice.

      Deborah then called CPS and took Jessica to Alliance for Children in

Arlington, Texas, to be interviewed by CPS. She also took Jessica to Cook

Children’s Medical Center for a sexual abuse exam. Deborah further testified

that after Jessica told her about the abuse, she allowed supervised visits

between appellant, Jessica, Teresa, and Abigail at her house approximately

three to four times. She stated that appellant contacted the girls after the

allegations were made.

      Jessica testified that after making the outcry to Deborah, she called her

cousin Meredith and told her about the abuse. However, Meredith told Jessica

that she was uncomfortable talking about the abuse, so Jessica stopped talking

about it.

      Jessica stated that she went to Missouri for the holidays after she made

the outcry to visit her sisters and grandparents.      Jessica testified that she

wanted to see appellant during the visits. Additionally, Jessica stated that she

considered moving to Missouri to live with her grandparents after she made the

allegations but that she is no longer going to move.

      Jamye Coffman, medical director of the CARE team at Cook Children’s

Medical Center, testified that on March 9, 2004, she spoke with Jessica, then


                                       8
thirteen years old, about the sexual abuse. She stated that Jessica was initially

reluctant to talk about the abuse. Jessica told Coffman that the abuse began

when she was eleven years old.       She said that she woke up one morning

without any clothes on.

      Jessica told Dr. Coffman that when she was eleven or twelve years old,

appellant would touch her on her breasts and privates with her panties off with

his hand, put his tongue in her privates, made her masturbate him, ejaculated

on her privates one time, and French kissed her. Dr. Coffman testified that

Jessica told her that she and Abigail confronted appellant about the abuse, and

appellant told them that it would stop. Dr. Coffman stated that her diagnosis

was sexual abuse with nonspecific findings.

      Edna Campbell, a CPS investigator, testified that she received a referral

on February 10, 2004, regarding the sexual abuse of Jessica. Campbell stated

that she interviewed Jessica on February 13, 2004, for approximately an hour.

During the interview, Jessica stated that appellant had touched her

inappropriately when she was visiting him.        Jessica said that on several

occasions she had awakened without her underwear on or without any clothes

on.

      In particular, Jessica recalled two specific instances of abuse, during

Christmastime and late summer 2003. Jessica told Campbell that she would

                                       9
wake up naked. Jessica told Campbell that during Christmas one year, she was

at her grandparents’ house and woke up with appellant in her bed, even though

she remembered appellant’s going to sleep on the couch the night before.

Additionally, Jessica stated that in the summer of 2003, she woke up in

appellant’s bed, rolled over, and ran back into the bedroom that she shared with

her sisters. Further, in her written statement, Jessica stated that she woke up

with a “yellow pile of liquid on her vagina.”

      During the interview, Jessica stated that she was not sure whether the

abuse had actually occurred or whether she was just dreaming. However,

Jessica stated that she did not think it was a dream. Campbell testified that

Jessica never stated that appellant laid on top of her or French kissed her nor

that she performed masturbation on appellant.      However, Campbell further

stated that she felt like Jessica was not telling her the complete story.

      Campbell further testified that on February 26, 2004, she spoke with

appellant at the advocacy center about the abuse.       When Campbell asked

appellant if the abuse had occurred, he neither confirmed nor denied it but

simply stated that he could not remember if it had occurred because he was a

deep sleeper.

      Additionally, appellant said that he had a king-size bed and that Jessica

and Abigail would take turns sleeping in his bed at night because he had a

                                      10
roommate at the time. He stated that at the end of the summer in 2001, the

girls told him about the sexual abuse.

      Abigail testified that she always shared a room with Jessica and Teresa

when they were at appellant’s apartment. She stated that she and Jessica

would share a bed and that Jessica would normally sleep on the side of the bed

next to the wall. Abigail testified that appellant never got Jessica out of their

bed and took her to his bedroom because he would have had to reach across

her to get Jessica. Abigail further stated that she would have awakened if

appellant had attempted to get Jessica out of their bed because she is a light

sleeper.

      She stated that Jessica told her that appellant had abused her but that

Jessica did not go into details about the allegations.    Abigail then went to

appellant and confronted him about the abuse. Abigail testified that when she

told appellant that Jessica stated that he had abused her, he was “puzzled” and

did not know what she was talking about. Further, Abigail said that appellant

never personally abused her.

      Abigail stated that after Jessica made the outcry, Deborah and Jessica

went to Missouri for Thanksgiving, Christmas, and spring break. She stated

that they were not allowed to stay at her grandparents’ house because




                                       11
appellant was living there.    Abigail testified that Jessica was upset and

confused that she could not stay at the house.

      Teresa, appellant’s youngest daughter and Jessica’s sister, stated that

she and her sisters had their own room when they slept at appellant’s

apartment.   Teresa testified that they slept on a bunk bed at appellant’s

apartment, that she always slept on the top bunk bed, and that Jessica and

Abigail would sleep on the bottom bunk. According to Teresa, Jessica would

always sleep on the side of the bed that was against the wall because Jessica

was afraid she would fall off the bed. Teresa stated that Jessica and Abigail

never acted like they were afraid of appellant.

      Additionally, Teresa said that after Jessica made the allegations of sexual

abuse, appellant drove Teresa back to Texas from Missouri, and Deborah, her

mother, did not express any concerns about her being in the car alone with

appellant. Teresa testified that appellant always slept on the couch at her

grandparents’ house in Missouri and that Jessica was always in a bedroom with

either herself or Teresa.

      Carolyn Kay (“Carolyn”), appellant’s mother, testified that appellant lived

on the farm in Missouri with her and her husband. She stated that Abigail

moved to the farm before Jessica made the allegations, and Teresa moved after




                                       12
the allegations were made. Carolyn testified that Deborah was never concerned

that Abigail and Teresa were living in the same house as appellant.

      She stated that Deborah and Jessica went up to Missouri the first

Thanksgiving after Jessica made the outcry. Carolyn testified that Deborah and

Jessica wanted to stay at her house during their visit but that she told them

that they could not stay there because appellant was living there. Additionally,

Jessica was “extremely upset” that she could not see appellant. Carolyn stated

that Deborah and Jessica went to Missouri for Christmas in 2004 and for

Abigail’s birthday in May 2005.

      Carolyn stated that Jessica has a lot of problems and that she is a “drama

queen.” Carolyn testified that Jessica would lie to get attention and that she

gets irritated when her sisters get more attention than she does.

      Furthermore, Carolyn testified that it was not possible for Jessica to wake

up with appellant in her bed at her house because she would have awakened

when appellant walked up the stairs. She stated that whenever Jessica was

at her house, the girls would sleep upstairs, and appellant would sleep on the

couch downstairs. Carolyn further testified that Abigail is a light sleeper.

      Meredith, appellant’s niece and Jessica’s cousin, testified that when she

and Jessica would stay at their grandparents’ house, they would always sleep

in the same bed. She said that Abigail and Teresa would sleep on the floor in

                                       13
the same room with them. Meredith stated that Jessica never had a room to

herself at their grandparents’ house.

       Further, Meredith stated that Jessica called her one night several months

after making the sexual abuse allegations and told her that she had had a dream

in which a guy with no face was chasing her and she could not get away from

him.       Jessica then stated that she began remembering how things “had

happened to her at night when she was sleeping.” Meredith then asked Jessica

if she knew what sexual intercourse was, and Jessica stated, “yeah and no.”

Jessica stated that she was not sure if appellant had really abused her or if she

had dreamed that she had been abused. Additionally, Meredith testified that

Jessica is not very truthful.

       Appellant contends that the evidence is factually insufficient to show that

he committed the offenses of indecency with a child. Appellant asserts that

the record shows that Jessica dreamed up the allegations against him and that

she “is a liar.” 4 However, appellant acknowledged in an email to Deborah that

Jessica and Abigail had confronted him about the abuse. He also admitted

having an erotic dream during the time the girls were taking turns sleeping in




       4
      … The testimony of a child victim alone is sufficient to support a
conviction for indecency with a child. Johnston v. State, 230 S.W.3d 450,
455 (Tex. App.—Fort Worth, 2007 no pet.).

                                        14
the bed with him. Additionally, when appellant spoke with Campbell about

Jessica’s outcry, he told her that he could not remember if he had sexually

abused Jessica but that Jessica and Abigail had confronted him about the

abuse at the end of the summer in 2001.

      Deferring, as we must, to the jury’s resolution of contradictory testimony

and evaluation of credibility and demeanor, we cannot say that the evidence is

so weak that the verdict is clearly wrong and manifestly unjust nor that the

conflicting evidence so greatly outweighs the evidence supporting the verdict

that the jury’s determination is manifestly unjust. See Johnson, 23 S.W.3d at

8. Accordingly, we overrule appellant’s first point.

          IV. Notice of Intent to Introduce Extraneous Offense Evidence

      In appellant’s second point, he contends that the trial court erred by

overruling his objection to extraneous offense testimony because the state did

not give him timely notice of its intent to introduce it. The State, however,

argues that the trial court did not abuse its discretion because appellant was

given sufficient notice about the extraneous offense.5


      5
        … In its brief, the State argues that appellant did not properly preserve
error because he did not repeatedly object to the extraneous offense testimony.
However, appellant objected four times before asking for a running objection
from the trial court. Additionally, when appellant asked for a running objection,
the trial court stated, “Ma’am, you have your objection. I’ve given it to you.”
Thus, the record demonstrates that appellant properly preserved error to this

                                       15
                           A. Standard of Review

      The trial court’s decision to admit extraneous offense evidence during

punishment is reviewed for an abuse of discretion.     Sanders v. State, 191

S.W.3d 272, 276 (Tex. App.—Waco 2006, pet. ref’d), cert. denied, 127 S. Ct.

1141 (2007); see also Lajoie v. State, 237 S.W.3d 345, 352 (Tex. App.—Fort

Worth 2007, no pet.). The trial court’s decision should be reversed on appeal

only if there is a showing of a clear abuse of discetion. Theus v. State, 845

S.W.2d 874, 881 (Tex. Crim. App. 1992). Only if the court’s decision falls

outside the “zone of reasonable disagreement” has it abused its discretion.

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on

reh’g).

                             B. Applicable Law

      Article 37.07, section 3(g) of the Texas Code of Criminal Procedure

provides as follows:

      On timely request of the defendant, notice of intent to introduce
      evidence under this article shall be given in the same manner
      required by Rule 404(b), Texas Rules of Evidence. If the attorney
      representing the state intends to introduce an extraneous crime or
      bad act that has not resulted in a final conviction in a court of
      record or a probated or suspended sentence, notice of that intent
      is reasonable only if the notice includes the date on which and the



issue because the trial court clearly understood the extent and nature of
appellant’s objection and ruled on it. See T EX. R. A PP. P. 33.1(a).

                                      16
      county in which the alleged crime or bad act occurred and the
      name of the alleged victim of the crime or bad act. The requirement
      under this subsection that the attorney representing the state give
      notice applies only if the defendant makes a timely request to the
      attorney representing the state for the notice.

T EX. C ODE C RIM. P ROC. A NN. art. 37.07, §3(g) (Vernon Supp. 2007).

                                   C. Analysis

      On July 22, 2004, appellant properly filed his request for notice of

extraneous offenses and offenses to be used for enhancements under article

37.07, § 3(g) of the code of criminal procedure and rule of evidence 404(b).

T EX. C ODE C RIM. P ROC. A NN. art. 37.07, § 3(g); T EX. R. E VID. 404(b). The State

filed its first notice of intent to offer extraneous offenses on April 28, 2006.

On June 22, 2006, the State filed its supplemental notice of intent to offer

extraneous offenses.     Subsequently, on June 13, 2007, the State filed its

second supplemental notice of intent to introduce evidence of extraneous

offenses, other crimes, wrongs and acts under article 37.07, § 3(g).             The

State’s second supplemental notice indicated that the State intended to offer

the testimony of Paula, appellant’s former stepdaughter, during the punishment

phase to show that appellant had sexually abused Paula. This notice was filed

nine days before the beginning of the guilt-innocence phase of trial and fourteen

days before the beginning of the punishment phase.




                                         17
        The State, on timely request by the defendant, must give reasonable

notice of extraneous crimes or bad acts that the State intends to introduce

during the punishment phase. T EX. C ODE C RIM. P ROC. A NN. art. 37.07, § 3(g);

Burling v. State, 83 S.W.3d 199, 202–03 (Tex. App.—Fort Worth 2002, pet.

ref’d). To be reasonable, the State’s notice must be given in advance of trial

and must include the date on which and the county in which the alleged

offense occurred and the complainant's name. T EX. C ODE C RIM. P ROC. A NN. art.

37.07, § 3(g). The purpose of the notice requirement is to prevent unfair

surprise to a defendant.     Wallace v. State, 135 S.W.3d 114, 120 (Tex.

App.—Tyler 2004, no pet.); Burling, 83 S.W.3d at 203; Nance v. State, 946

S.W.2d 490, 493 (Tex. App.—Fort Worth 1997, pet. ref’d).            Further, the

reasonableness of the notice turns on the facts and circumstances of each

case.    Scott v. State, 57 S.W.3d 476, 480 (Tex. App.—Waco 2001, pet.

ref’d); see Fugate v. State, 200 S.W.3d 781, 783 (Tex. App.—Fort W orth

2006, no pet.).

        On June 21, 2007, appellant filed a motion for continuance alleging that

he did not have adequate time to investigate Paula’s sexual abuse allegations.

In his motion, appellant acknowledged that the State did not learn of the

extraneous offense until June 13, 2007, when Paula told her therapist about




                                       18
the abuse. Accordingly, appellant stated that the prosecutor informed him

about Paula’s testimony that same day.

      Because the record shows that the prosecutor informed appellant of the

extraneous offense evidence as soon as the prosecutor discovered it, which

was nine days prior to trial and fourteen days before it was actually used at

punishment, we hold that the trial court did not abuse its discretion by

overruling appellant’s objection to the introduction of the evidence. See Scott,

57 S.W.3d at 483 (determining that six days’ notice before trial was sufficient

under facts of the case); Henderson v. State, 29 S.W.3d 616, 625 (Tex.

App.—Houston [1st Dist.] 2000, pet. ref’d.) (holding that eight days’ notice of

extraneous offense was reasonable when the prosecutor discovered the

information eight days before the testimony in the punishment phase); see also

Fugate, 200 S.W.3d at 783 (holding that seven days’ prior notice of intent to

enhance punishment was adequate under facts of the case.) Accordingly, we

overrule appellant’s second point.




                                      19
                              V. Conclusion

      Having overruled appellant’s two points, we affirm the trial court’s

judgment.




                                              TERRIE LIVINGSTON
                                              JUSTICE

PANEL F: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: June 19, 2008




                                   20
